Norway’s position in pandemic agreement negotiations: a response to Usman Mushtaq

Mushtaq justifies Norway’s positions with the following three arguments: First, the PABS system is inherently complex and a “one-size-fits-all” approach would not be appropriate. Second, proposed new rules on the sharing of sequence information could negatively affect open access and genomic surveillance. Third, there is a need to balance the provision of “20 per cent of real-time production of vaccines, therapeutics and diagnostics (VTDs)” to the Global South during pandemics with ensuring that the system remains “sufficiently attractive” for pharmaceutical companies to participate.

This article is a response to Mushtaq’s arguments.

Uncertain access to vaccines during pandemics 

At the centre of the pathogens access negotiations is a simple principle: when countries share pathogen specimens or related genetic data, there should be clarity on how benefits - such as vaccines, therapeutics and diagnostics (VTDs) - are shared in return by those who use them to develop VTDs. In order to achieve this clarity, access and benefit sharing systems rely on legally enforceable agreements (contracts) made at the point of access.

International law under the Convention on Biological Diversity and the Nagoya Protocol, to which Norway is a party, requires that access to genetic resources is subject to mutually agreed terms, usually contracts, between the provider and the recipient. Such terms can address conditions on utilisation of shared resources. This contractual interlinkage between access and benefit sharing creates legal certainty for the sharing of benefits. In fact, the University of Oslo applies such agreements when sharing genetic materials. They also address data derived from these materials. 

Along similar lines, the Global South has proposed standardised contractual arrangements to be signed at the moment pathogens and genetic data are accessed, such that the certainty with respect to access to VTDs is secured. Without contracts, there is no legal guarantee that VTDs will be shared during a pandemic.

Yet, Norway aligning with the EU, and abandoning its own good practices, expects the Global South and WHO to share pathogens and data freely. They want to leave benefit-sharing provisions to open-ended bilateral negotiations between WHO and individual pharmaceutical companies. The argument that a “one-size fits all approach would not be appropriate” is used as an excuse to this approach. While this may support some level of customisation in benefit-sharing terms (for example, adjusting quantities of VTDs based on production capacity), it does not justify the absence of contracts at the point of access.

Negotiating contracts later would mean that use of shared pathogens would have to be detected through data mining of patent application or other methods before benefit sharing contracts could be sought. This approach relies on goodwill without securing commitments at a stage when contractual agreement was both more feasible and appropriate.

In the opening session of the sixth and final meeting the PABS negotiation on March 23, 2026, the Norwegian delegation said they were looking for solutions that could “help in clarifying the obligations and the expectations on member states…” and to make sure that the WHO secretariat is given a “mandate that is as clear and good as possible for their negotiations with private entities…”

Such open-ended negotiations between WHO and pharmaceutical companies could prolong indefinitely. There is simply no leverage for WHO to get the companies to sign an agreement after they have accessed and utilised the pathogen samples or digital sequence information. Both the absence of contracts and prolonged negotiations undermine global pandemic prevention, preparedness and response.

No focus on pandemic prevention

When a public health event arises, there are several grades of emergency. Before WHO declares a “pandemic emergency,” which is the highest level, an outbreak may be defined as a Public Health Emergency of International Concern (PHEIC). Prompt access to vaccines and other health products for affected countries can prevent outbreaks from turning into PHEICs or later into pandemic emergencies. Since 2005, seven PHEICs have been declared, while pandemics like Covid19 are much more infrequent.

When Norway talks about securing “20 per cent of VTDs for pandemic emergencies,” this leaves out the earlier stages of disease outbreak. The initial phases of disease spread before a situation escalates into a pandemic emergency would not be covered for distribution of VTDs. This contradicts Article 12 of the final Pandemic Agreement text, which states that the PABS annex should include benefit sharing provisions prior to the declaration of pandemic emergencies.

Article 12 Para 7 states: “The PABS Instrument [Annex] shall … include benefit sharing provisions, in the event of a public health emergency of international concern …” Article 12 Paragraph 8.c. reads: “[It] shall also include additional benefit sharing provisions to be set out in legally binding contracts signed with the World Health Organization …”

A year ago, before the Pandemic Agreement was adopted, the Global South wanted provisions to specify set-aside percentages and licensing on predetermined terms and conditions for diversifying manufacturing of VTDs into affected regions. The developed countries said that there was not enough time to agree on details and postponed it until this year’s negotiations.

As recent deliberations in Geneva have shown, Norway, along with the EU, Switzerland, Japan, and Australia do not want any percentage of benefit sharing of VTDs to be specified for pre-pandemic stages of outbreaks. There is also very limited discussion on licensing as a benefit. This is a backtracking on their commitment under Article 12 and from their stated priority of strengthening pandemic prevention within the WHO Pandemic Agreement.

Thus, what we understand about the Norwegian position is that countries must share pathogens with pandemic potential and their sequence information as soon as they detect such pathogens, but there is no concomitant obligation for manufacturers to share vaccines or other health products until a pandemic emergency is declared.

This imbalance raises concerns about equity and justice. It also goes against public health rationale and scientific principles that advocate eradication of disease at the earliest possible time.

Skewed understanding on open access

Another central disagreement in the PABS negotiations is the meaning of “open access” and its relationship with the traceability measures of pathogen sequence information. Norway is reportedly one of the most vociferous opponents of non-invasive and simple measures such as “user registration” and “data access agreement,” arguing that such measures “limit” the use of data, and “create barriers” to research, and hinder surveillance and innovation. Along with Germany and Japan, Norway is promoting anonymous and non-transparent access to pathogen sequence information.

Norway is also seen to be opposing a WHO managed sequence database proposed by the Global South that would allow rapid and non-discriminatory access to data, while ensuring that users agree to basic benefit-sharing terms. Norway instead supports reliance on existing external databases, which lack contractual working relationships with WHO, to be used for the PABS system. This basically leaves developing countries with no choice but to share the sequence information via databases that are not accountable and transparent, compromising benefit sharing obligations. Interestingly, Norway overlooks the fact that such reliance on external databases also fails to guarantee access to sequence information for researchers, without discrimination, casting doubts on its concern about open access.

The argument that user registration and contracts with databases prevent open access is not consistent with the UNESCO Recommendation on Open Science 2021, which states that open access knowledge can be subject to specific conditions, including licenses. The UNESCO recommendation makes it clear that openness must be accompanied by responsibility, and public accountability. It categorically states that open science infrastructure should not lead to unfair and inequitable extraction of data and should result in collective benefits.

Ignoring these recommendations from UNESCO, Norway’s idea of open access would lead to inequitable extraction of data from the Global South to databases controlled by the EU and other developed countries like Japan and the United States. It would promote unfair and inequitable extraction of profit from publicly-funded scientific activities without proper benefit-sharing obligations for the use of sequence information. It could also increase biosecurity risks by undermining vigilance.

While Norway opposes data user registration in the context of the PABS negotiations, Norwegian institutions share sequence data of the Sars-Cov-2 virus almost exclusively with the GISAID database which deploys mandatory user registrations and standard data access agreements. Have Norwegian scientists hindered public health surveillance or delayed R&D? Many testimonies from industry and states show that a GISAID-style database with user registration and data access agreement would promote timely data sharing and a collaborative research ecosystem, contrary to the arguments made by the EU and Norway.

Norway’s stand ignores the views of those scientists who have been calling for accountable data repositories and user registration and data access agreements to reduce biopiracy and biosecurity risks.

Norway should show flexibility

Global South countries have engaged directly with the concerns raised by Norway and other high-income countries. Small developing countries, which have consistently demanded specific percentages for set-asides of real-time production of VTDs during the early stages of outbreaks, have asked countries like Norway what effective alternatives they can propose if they oppose such set-asides. For these countries, having legal certainty about early access to VTDs is not ideological, but essential to saving lives. So far, there has been little clarity from Norway or other Global North delegations about what the alternatives might look like, or how they would ensure reliable and equitable access to pandemic tools.

In sum, it would not be an exaggeration to say that Norway’s positions are contrary to the established principles of international law on access and benefit sharing and with the norms of open science and equitable pandemic prevention, preparedness, and response. By supporting the decoupling of access to pathogens and data from enforceable benefit-sharing obligations, Norway risks legitimising biopiracy and undermining global health preparedness. In this context, Norway appears to be drifting from its traditional role as a developed country voice aligned with the right to health, fairness, and justice.

Many civil society organisations across regions, however, continue to hope that Norway will soon embrace its traditional role back and advance solutions grounded in equity, accountability, and legal certainty, rather than approaches that normalise extraction and defer justice. There are informal negotiations going on in WHO this week, and formal negotiations will resume from April 27, 2026.

_______________________________________________________________

Nithin Ramakrishnan is a lawyer and Senior Researcher at Third World Network.

Lauren Paremoer is Associate Professor of Political Studies at the University of Cape Town and a member of the People’s Health Movement.