PHA-Exch> Statement on recently concluded negotiations in Geneva on IGWG on Public Health, Innovation and Intellectual Property

[Claudio Schuftan]

From: CTD/ DSF ctddsf at bol.net.in

The Slippery Slope of Negotiations at the IGWG on
Public Health, Innovation and Intellectual Property

 As the negotiations wound down to a close at the Intergovernmental
 Working Group on Public Health, Innovation and Intellectual Property, a
 familiar pattern unfolded. To the dismay of all those who saw in the
 IGWG an opportunity to make a real difference in a starkly iniquitous
 situation – a situation where medicines required the most for the
 world's poorest and most vulnerable populations are rarely researched or
 made accessible and affordable – the conclusions arrived at, may well
 make little or no dent in the present situation.

  Chicanery and doublespeak by developed countries

  The week of negotiations, have been replete with instances of
 chicanery and doublespeak on the part of most developed countries, led by
the
 United States. The principal thrust of their strategy has been to
 obstruct any forward looking measure that would promote the basic
objectives
 of the IGWG, objectives that were designed to find real mechanisms
 that can promote both innovation and access to medicines that are required
 for the poor in developing countries. They have insisted on language
 in the draft strategy document being negotiated that is designed to
 defend IPRs even in situations where there is glaring evidence regarding
 how such rights stand in conflict with efforts to promote innovation and
 access to medicines. They have also obstructed provisions that are
 designed to provide for the WHO a bigger role in issues related to public
 health, access, and intellectual property. The catch phrases used by the
 negotiators from the North, in order to dilute all meaningful
 proposals have been "voluntary", "if feasible" and "where
 appropriate". Their strategy has received a huge boost from large
 delegation from pharmaceutical companies (attending the negotiations as
 NGOs!), who can be seen all over the corridors, lobbying various country
 delegations.

  Developing Countries Forced to Negotiate Away Text

  In the face of such an onslaught, developing country delegations have
 had to defend their positions, virtually with their backs to the wall.
 Their ability to do so has been compromised by the relative small
 sizes of their delegations, and the limited expertise they have been able
 to harness to back their arguments. They have also been further
 handicapped by the negotiations being repeatedly split into 2 or more
 negotiating groups, thereby helping countries in the North with large
 delegations and a wider pool of expertise in negotiations to draw from.
There
 have been significant attempts to keep a semblance of balance in the
 negotiations by developing countries such as India, Brazil, Thailand,
 Bolivia, Barbados, Surinam, Kenya, etc. But it is fairly clear that such
 efforts have not been adequate.

  A basic asymmetry in the negotiating strategies was also seen to
 unfold as the negotiations proceeded. Developed countries, operating from a
 position of strength, were secure in the knowledge that they had
 nothing to lose. Developing countries, acutely conscious that a fiasco in
 these negotiations would set back the agenda of innovation and access by
 years, if not decades, were repeatedly forced to negotiate away
 language in the text that is useful to them, just in order to ensure that
the
 negotiations concluded on a positive note. Being forced to do so, we
 are dangerously close to a situation where they the negotiated text goes
 nowhere, and does not attempt to chart a course that could remedy the
 present situation.


  Big Pharma comes away happy with Financing Mechanism

  Such a situation has clearly emerged in the crucial Element 7 of the
 negotiated text, that deals with the promotion of sustainable financing
 mechanisms to secure resources for R&D that focuses on the specific
 health problems of developing countries. The Element had three
 negotiating points. The first deals with a proposal to set up a working
group
 that would examine present financing mechanisms as well as new mechanisms
 to support desired R&D. The second deals with product development
 public-private partnerships, and proposals to document, analyse and
support
 them. The third dealt with the proposal to set up an R&D fund to
 address the needs of R&D in areas of priority for developing countries. In
a
 way, this Element is crucial to the success of the negotiations, as it
 is designed to secure resources for the process to go forward.

  The negotiated consensus text dilutes the intent of the first
 proposal by only talking of a "expert" working group that would be set up
 for the purpose of "examining" "sources" of financing, instead
 of the proposal earlier to look at "models of financing". While the
 proposals on public-private partnership have been endorsed, the
 proposal on setting up of an R&D fund has been deleted. Thus, what we are
 left with is a mere promise to examine new funding mechanisms, without a
 matching commitment that such examination would lead to anything
 tangible. Possibly, the ones who would be the happiest with such a turn of
 events would be Big Pharma. They are left with no real threat of a
 possible challenge in the form of alternate mechanisms to their domination
 through control on R&D. On the other hand they can go back satisfied at
 having secured three loud cheers for public-private partnerships, which
 in many cases puts more money in the pockets of Big Pharma, in exchange
 for
 marginal benefits. In a curious turn of events, typical of how
 developing countries have had to compromise on useful text in these
 negotiations, India – which had proposed the text on the R&D fund in
November
 – failed to defend its own proposal, and was virtually silent when the
 clause was deleted.

  Too hasty in negotiating?

  Given the lack of direction in the final text on concrete ways to
 start making a difference on how alternate mechanisms of R&D can be
 promoted, and how they are to be financed, there is a strong case to
examine
 if developing countries have been too hasty to try to arrive at a
 forced consensus on most issues. There is perhaps a moral hidden somewhere
 in this. Developing countries, including many of the bigger ones with
 developed capabilities, came to these negotiations too ill-prepared. The
 most obvious gap was in the capability to understand and present
 opinions regarding S&T capabilities and R&D mechanisms. For example, some
 developing countries came ill-prepared to present their country's own
 initiatives in drug discovery. Clearly, interdisciplinary co-ordination
 has been lacking in the process through which developing country
 delegations have been briefed. This is of particular concern, because such
 capabilities do exist in the larger developing countries, and it's a
 pity that this capability was not harnessed. On the other hand, in
 some areas where country delegations were well briefed, they did a
 remarkable job in defending domestic and developing country interests --
such
 as the Indian delegation on IP issues.

  These deficiencies, at the end of the day, may well have made the
 crucial difference. Also lacking was the political will to follow through
 proposals that were clearly in domestic interest or in the broader
 interest of developing countries. The "fear factor" of being isolated
 in obstructing a manufactured consensus, seems to have also prevented
 delegations of developing countries for speaking out (in contrasts these
 negotiations have been replete with instances of text being marked as
 "consensus, pending US decision!).  Finally, it was also clear that
 the developing block were not always working in tandem, and the lack of
 leadership being provided by the larger developing countries was often
 acutely felt. All is however not lost and the World Health Assembly and
 further work on the Plan of Action are opportunities to regain some
 ground.

  Amit Sen Gupta
  All India Peoples Science Network

  K.M.Gopakumar
  Centre for Trade and Development (CENTAD), India
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