The Annex That Is Still Being Written: Pathogen Access, Benefit Sharing and Pakistan’s Own Draft on Genetic Resources

On 18th September 2026 the eighth meeting of the Intergovernmental Working Group on the WHO Pandemic Agreement closed in Geneva, and the World Health Organization announced that the negotiations on the annex on pathogen access and benefit sharing had advanced. It did not announce that anything had been agreed. Three days from now, on 25th September 2026, heads of state and government are expected to meet in New York for the second High-Level Meeting of the General Assembly on pandemic prevention, preparedness and response, and the political declaration tabled for adoption there calls for the “timely completion” of the annex. Completion is precisely what has not happened.

That is a diplomatic fact and a Pakistani drafting problem. A country that writes its own law on access to genetic resources and the sharing of the benefits arising from them must say what a “benefit” is. The one international instrument that will govern the most valuable class of those resources in a health emergency has not yet said. Hence the Pakistani drafter has to choose, now and not after the annex is adopted, between writing a definition of its own and waiting for Geneva to write one. Both courses carry a cost, and I set out below why I think a third one is better than either.

What is still open

The WHO Pandemic Agreement was adopted by the World Health Assembly by resolution WHA78.1 on 20th May 2025. Article 12.2 leaves the whole of the operative content of the pathogen system to a separate “PABS Instrument”, to be agreed as an annex, and Article 31.2 provides that the Agreement shall be open for signature only after the Health Assembly adopts that annex. The Working Group was to deliver it to the Seventy-ninth World Health Assembly in May 2026. It did not; on 1st May 2026 Member States agreed that more time was needed and that the outcome would go to the Eightieth World Health Assembly in May 2027, or earlier to a special session in 2026.

The seventh meeting, from 6th to 17th July 2026, ended with three elements named by the World Health Organization in its statement of 20th July 2026 as needing further work: the contractual arrangements underpinning the framework, the structure of the laboratory networks that are to handle pathogens and their sequence information, and the definition of the benefits arising from sharing. The statement of 18th September 2026 reports progress and a “strong direction for the weeks ahead”, in the words of the co-Chair, Ambassador Tovar da Silva Nunes of Brazil, but it names none of those three elements as settled and it fixes no date for a ninth meeting. The last public list of what remains open is therefore the list of 20th July 2026, and the definition of a benefit is on it.

What Article 12 has already fixed

The international position is not a blank, since Article 12 already fixes the frame. Article 12.5(a) requires the “PABS Instrument” to provide for benefits “both monetary and non-monetary, including annual monetary contributions, vaccines, therapeutics and diagnostics”. Article 12.6(a) requires each participating manufacturer, in a pandemic emergency, to make available to the World Health Organization 20 per cent of its real time production of the relevant products, with at least 10 per cent as a donation and the remainder at affordable prices. Article 12.8 adds capacity building, research and development cooperation, non-exclusive licences to manufacturers in developing countries and other transfer of technology, each “to be set out in legally binding contracts signed with the World Health Organization”.

What is unsettled is the mechanism rather than the menu: which benefits attach to which act of sharing, who gives them, and under what contract, which is exactly the part a domestic statute has to meet.

The clause that reaches a Pakistani statute

Two provisions turn this from a Geneva question into a question for Islamabad.

The first is Article 12.5(d)(ii) of the Agreement. It requires the “PABS Instrument” to be implemented so that each Party “reviews and, as it deems appropriate, aligns its national and/or regional access and benefit sharing measures applicable to PABS Materials and Sequence Information”, and so that measures “contrary to, or inconsistent with, or duplicative of” the Instrument “will not be applied upon entry into operation of all elements of the PABS System”. A domestic definition of “benefit” which departs from the annex is therefore not merely a policy disagreement; on entry into operation of the “PABS System” it is a measure the Agreement expects Pakistan to stop applying to “PABS Materials and Sequence Information”.

The second is Article 4(4) of the Nagoya Protocol, which Article 12.4 of the Agreement expressly invokes. Where a specialised international access and benefit sharing instrument applies that is consistent with the objectives of the Convention on Biological Diversity and the Protocol, the Protocol “does not apply” for the Parties to that instrument “in respect of the specific genetic resource covered by and for the purpose of the specialized instrument”. Pakistan acceded to the Nagoya Protocol on 23rd November 2015 and it came into force for Pakistan on 21st February 2016. Hence, for pathogens with pandemic potential, the Nagoya footing on which a Pakistani access and benefit sharing law stands falls away once Pakistan is a party to the Agreement and the annex applies, whatever that law’s own definition says.

None of this takes away the sovereign right to legislate. Operative paragraph 14 of resolution WHA78.1 reaffirms “the sovereign right to legislate and implement laws, including national access and benefit-sharing legislation”. The right is intact; what the Agreement governs is how that law must behave for one class of material once the system is running.

Where Pakistan stands

Pakistan is not starting from nothing, and it is not starting from a single text either. The Ministry of Climate Change, as focal point for the Convention on Biological Diversity, held a three day workshop with GIZ, recorded in Press Information Department release No. 135, whose stated objects included “to share the main points of draft ABS Act” and “to fine tune the draft ABS legislation”. An access and benefit sharing Bill has therefore been in preparation since the accession, and a Bill of that kind follows the Nagoya model, in which benefits are shared “upon mutually agreed terms” between provider and user and “may include monetary and non-monetary benefits” of the kind listed in the Protocol’s Annex under Article 5(4).

On the health side, the same subject has already been decided, and decided the other way. Paragraph 3.4 of the National Genomic Surveillance Strategy for Priority Pathogens 2025-2030, issued by the Ministry of National Health Services, Regulations and Coordination with the National Institute of Health, provides that genomic data and metadata “for all priority pathogens shall be routinely submitted” to national and global repositories, “GenBank, GISAID, NCBI, GLASS” among them. It says nothing about any benefit in return. The Strategy is a policy and not a law, but it is the operative instruction to the laboratories, hence Pakistan’s pathogen sequences are leaving today on terms that no ABS Act and no annex has yet touched.

A third regime sits beside both: the Cali Fund for digital sequence information, created by decision 16/2 of the Conference of the Parties to the Convention on Biological Diversity and launched on 25th February 2025, expects large users of such information to contribute 1 per cent of profits or 0.1 per cent of revenue, which is another definition of a benefit, attached to data rather than to samples.

The drafter’s choice

The first course is for the Pakistani Bill to state its own definition of “benefit” and apply it to every genetic resource, pathogens included. It is complete on the day of enactment. Its cost is that Article 12.5(d)(ii) makes the definition provisional for the most important material it covers, and a Bill which the Federal Government would be expected to disapply in part on the day the “PABS System” enters into operation is a Bill written to be amended.

The second course is a clause providing that benefits for pathogens shall be as provided in the “PABS Instrument”. Its cost is worse. It enacts a blank: a statute that points at a text no one has yet written, adopted by a body outside Parliament, on a date no one can yet fix. Until May 2027 at the earliest the clause would govern nothing, and the pathogen sequences leaving under paragraph 3.4 would stay exactly where they are, outside any benefit rule at all.

I would take neither. The Bill should define “benefit” in the Nagoya terms for every genetic resource, since those terms bind Pakistan now. It should then state a scope clause for “PABS Materials and Sequence Information”: the Act applies to them in full until the Federal Government, by notification in the official Gazette laid before Parliament, declares that the “PABS System” has entered into operation for Pakistan, and from that date the Act applies to them only so far as it is consistent with the “PABS Instrument”. That is the structure Article 4(4) of the Nagoya Protocol already contemplates, it satisfies Article 12.5(d)(ii) without a later amending Act, and it leaves no gap in the meantime. The same Bill should say in terms that sequence information is a genetic resource for its purposes, since the Cali decision and Article 12 of the Agreement both reach it and the Surveillance Strategy is sharing it now.

The annex and the Pakistani Bill are being written in the same months. It is urgently required that the drafting choice be made in the text of the Bill while the annex is still open, because a definition chosen after May 2027 will be a definition chosen under the pressure of a system already in operation, and Pakistan will have shared its pathogens for another year and a half on no terms at all.