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

Centre for Trade and Development (CENTAD), India

All India Peoples Science Network