Reform legislation to boost the Pandemic Treaty

Mail & Guardian

25-04-2025

Lessons learned: During the Covid-19 pandemic, Global South countries such as South Africa were the last to get vaccines, ventilators and personal protective equipment, with these items delivered to wealthier nations first and surplus vaccines left to expire. Photo: David Harrison
After three years of intense negotiations, the World Health Organisation (WHO) member states have reached consensus on the Pandemic Treaty, officially known as the WHO Pandemic Agreement, a global legal instrument intended to prevent and respond to future pandemics more equitably.
This milestone comes in the wake of the Covid-19 pandemic, which revealed — and in many ways exacerbated — the deep inequalities that divide the Global North and South, particularly in access to medicines, vaccines and medical technologies.
Although the pandemic accelerated international cooperation in some respects, it also starkly exposed a system in which legal and economic structures privileged the wealthy and left the rest scrambling for survival.
At the heart of these discussions lies a controversial and complex issue: the intersection of business interests, intellectual property law and the right to health.
During the peak of the Covid-19 pandemic, countries in the Global South were often last in line to receive vaccines, ventilators and personal protective equipment, despite having contributed significantly to research, clinical trials and global health surveillance efforts.
The primary interest of pharmaceutical companies being how much money they can make meant that vaccines were distributed primarily to wealthier nations first, often in surplus quantities that later expired unused, while lower-income countries were forced into costly and legally onerous contracts or waited months, if not years, for access to basic health interventions.
This disparity was not accidental. It was the result of decades of a legal framework that embedded inequality into the global health ecosystem, a legal framework that aided multinational pharmaceutical companies largely based in the Global North.
Key among these are the intellectual property systems that allow pharmaceutical companies to hold exclusive rights over the manufacture, distribution and pricing of essential medicines and technologies.
The WHO-led global mRNA technology transfer hub, launched in 2021, such as the one in Cape Town, is a promising step toward equitable access to vaccine technology. Initial successes, such as early vaccine production and the selection of regional beneficiaries, reflect real progress in decentralising biomedical capacity. But critical issues remain.
Technology transfer alone is insufficient without substantial investment in infrastructure, regulatory frameworks and local expertise. Intellectual property barriers and limited cooperation from major pharmaceutical firms continue to hinder true autonomy for low- and middle-income countries.
Without sustained political will, funding and commitment to structural change, the hub risks becoming a symbolic effort rather than a transformative force. Its success depends on empowering regions to build lasting, independent mRNA manufacturing and innovation capabilities beyond the current pandemic.
Medicines were not always considered patentable. For much of modern history, pharmaceutical products were regarded as public goods. But, as pharmaceutical industries developed in emerging economies such as India, Brazil, and South Africa, the Global North began to reinforce intellectual property protections to maintain dominance over health innovation and markets.
The turning point came with the Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips), adopted by the World Trade Organisation (WTO) in 1995. Trips imposed minimum standards of intellectual property protection on all WTO member states, including for pharmaceutical products, thus placing barriers on the production and distribution of generic medicines.
The system was met with significant criticism, particularly from health activists who argued that Trips impeded access to life-saving medications in low- and middle-income countries. In response, the Doha Declaration on Trips and Public Health (2001) was negotiated to reaffirm member states' rights to protect public health. It introduced 'Trips flexibilities': legal provisions allowing countries to bypass patents in emergencies, such as through compulsory licensing.
But these flexibilities have proven difficult to use.
A notable example was Rwanda's attempt to import generic HIV/Aids drugs from Canada under a compulsory licence, a process so bureaucratic and time-consuming that it was used only once and never repeated. As such, Trips flexibilities have offered more promise on paper than in reality.
South Africa has long stood at the centre of the global struggle for equitable access to medicines. In the early 2000s, during the height of the HIV/Aids pandemic, the SA government faced legal action from multinational pharmaceutical companies for attempting to import more affordable generic antiretroviral drugs. The companies eventually dropped the case following immense public pressure, marking a major victory for health advocacy.
But this victory was not matched by a full-scale overhaul of the country's intellectual property laws. South Africa's Patents Act 57 of 1978 still operates largely on a depository system with no substantive examination, allowing low-quality patents to persist and making it more difficult to introduce generics.
Although the Intellectual Property Policy of the Republic of South Africa (Phase I) was adopted in 2018 and proposed key reforms — such as introducing patent opposition mechanisms and incorporating Trips flexibilities into national law — these have not yet been implemented through legislative amendments.
Additionally, the Intellectual Property Rights from Publicly Financed Research and Development Act 51 of 2008 (IPR Act) was enacted to ensure that publicly funded research benefits the public. But this framework has limitations in practice, particularly in urgent health contexts. Realising the promise of equitable access to health technology requires not only sound policy but enforceable legal mechanisms.
The WHO Pandemic Treaty was conceived as a response to the systemic failures exposed during the Covid pandemic. The primary objective is to ensure fairer and faster global distribution of vaccines, diagnostics, therapeutics and related technologies in the event of future pandemics.
A highly contested aspect of the negotiations centred on technology transfer, specifically whether countries and private companies would be compelled to share knowledge and waive intellectual property rights during health emergencies.
Global South countries, including South Africa, pushed for binding commitments on technology transfer, arguing that reliance on voluntary cooperation had failed during the pandemic. In contrast, countries such as the US, members of the EU and Japan strongly resisted any provisions that would make intellectual property waivers mandatory.
The final compromise language reportedly allows for greater flexibility during emergencies but falls short of automatic waivers, reflecting the enduring dominance of Northern interests in shaping global health governance.
This debate laid bare a broader truth: law is not neutral. The wording of treaties and national laws carries weighty implications for people's lives. Terms like 'voluntary' versus 'mandatory' can determine whether life-saving technology reaches those in need, or doesn't. The Pandemic Treaty is, in essence, a battleground between competing visions of global solidarity and national self-interest.
South Africa now faces a crucial moment of legal and political reckoning. The country must decide how to align its domestic legislation with the principles of the Pandemic Treaty while upholding the constitutional guarantee in section 27 of the right to access health care services. This may require substantive amendments to the Patents Act, as well as the implementation of pending reforms to improve patent quality and facilitate compulsory licensing mechanisms.
Moreover, with the potential withdrawal of health funding initiatives like Pepfar (President's Emergency Plan for Aids Relief), South Africa and its regional counterparts cannot afford to rely on external aid alone. Strengthening national legal frameworks to ensure independent and equitable access to medicines is now more urgent than ever.
The WHO Pandemic Treaty offers a glimmer of hope, not as a panacea, but as a catalyst. For South Africa and other Global South countries, it presents a rare opportunity to reshape their legal environments in ways that prioritise public health over profit. But doing so will require bold leadership, institutional reform and the political will to confront entrenched global power dynamics.
As the world looks to prepare for the next pandemic, the lessons of Covid-19 remain clear: inequality kills. The Pandemic Treaty signals a step toward building a more just global health system, but its effectiveness will depend on how it is implemented at the national level.
For South Africa, this means confronting the unfinished business of intellectual property reform, leveraging the country's history of health activism and championing the constitutional right to health. In doing so, it can reaffirm its place as a leading voice in the global movement for health equity, where access to life-saving medicine is not a privilege, but a right.
Rafia Akram is a lecturer of International Trade Law at the University of Pretoria and Legal consultant with Tutwa Consulting.