The working of the WTO Intergovernmental Working Group

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On a Road Named Nowhere

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 opportunenity to

make a real difference in a starkly iniquitous situation a situation where

medicines required the most for the worlds 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 aability

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-privat e 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 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 its 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

e-mail: <gopa.kumar@...>