Will 'Access & Benefits Sharing' Goals Trump Diluting Intellectual Property Provisions in Global Health Negotiations?
Newsletter Edition #39 [Treaty Talks]
Hi,
Negotiations in global health are not unfolding in a vacuum. Bilateral trade deals and geopolitics are oiling the machines in Geneva.
As the discussions towards a Pandemic Accord head into a crucial phase, we try to bring you up to speed on how some key issues in the current negotiations have pickled over the summer.
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More soon.
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Priti
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STORY OF THE WEEK
Will 'Access & Benefits Sharing' Goals Trump Diluting Intellectual Property Provisions in Global Health Negotiations?
The coming months will see WHO member states under intense pressure: first, to begin discussions on the basis of a text that will form the basis for negotiations towards a Pandemic Accord, and second, to conclude it within the stated deadline of May 2024. This pressure could mean making compromises by countries, forcing them to move from their long-held positions on contentious issues including on intellectual property, in a bid to achieve more defining goals in a Pandemic Accord such as on Access and Benefits Sharing, a few diplomatic sources have indicated.
While the motivation to conclude these negotiations continues to remain strong, not the least because of impending elections in a range of countries, the path towards an agreement remains less clear and as unpredictable as before. Many countries are keen to complete these negotiations should there be fundamental changes in politics at national levels. The rise of far-right agendas across countries big and small, threatens misunderstanding the nature of a new legal instrument and misconstrue implications for sovereignty. This is coupled with an attack on scientific reasoning, worsened by a growing anti-vaccines sentiment. These factors are adding to the urgency in concluding critical reforms on how the world responds to health emergencies.
Time is running out.
DG Tedros, a champion of the Pandemic Accord, lamented the pace of these discussions late last month.
Not much progress was made in August when overworked diplomats in Geneva took a much-needed break away from the intense pace of discussions up until the end of July that saw two back-to-back meetings of the INB and the working group to amend the IHR. Regional meetings of the WHO have been in progress where some of these topics are being workshopped. No informal meetings have been conducted between delegations in Geneva during this period. Fundamental disagreements persist, with many delegations privately questioning if and how will the first draft of the Pandemic Accord will take shape.
Geneva is set to become a hive of activity between now and the end of December before delegations trail off for a short break during Christmas. Keep in mind, that the INB and IHR discussions will go on in parallel during much of this period. (See below a string of previous updates from us on the INB and IHR meetings in July.)
In this story, we spoke to more than half a dozen different delegations from developing and developed countries in this intervening period, to get a sense of how they see the next few months and the potential compromises they might strike sooner than later to get this project off the ground.
AGENDA: INB DRAFTING GROUP MEETING [4TH-6TH JULY]
This week, the drafting group of the INB will discussions on the following provisions from the Bureau’s text: Article 9 (Research and development), Article 12 (Access and benefit-sharing), Article 13 (Supply chain and logistics), Articles 4 (Pandemic prevention and public health surveillance) and 5 (Strengthening pandemic prevention and preparedness through a One Health approach); Article 11 (Co-development and transfer of technology and know-how). (We will follow up on this week’s meeting subsequently). Countries will also likely agree on a path forward in the process.
THE WRITING ON THE WALL: ABS Vs IP?
Numerous diplomatic sources suggest that a new Access and Benefits Sharing mechanism will be the central piece in the Pandemic Accord. For the developing world, such a mechanism will be an essential victory, sources said. And for richer countries, that mostly host these databases of information and produce medical countermeasures based on shared pathogenic information, this is an undisputed priority. Having clear rules on sharing data - a key goal of such a mechanism - and agreeing to a set of benefits will be key features in such a mechanism. (See our comprehensive story on ABS here.)
While the modalities of how such a mechanism will be hashed out is yet to be determined, discussions were underway particularly in the informal consultations on ABS within the INB. These consultations are set to continue. We reported earlier that a greater number of developed countries are now open to ABS provisions than even six months ago. The mood in the room has shifted, one diplomat had told us during the summer.
While some countries, including the bloc of African countries are keen on agreeing on ABS provisions in time for May 2024, other countries are less certain.
“I believe that the most likely scenario is that we will have a protocol on ABS once the Pandemic Accord has been adopted. I do not see how we will be able to conclude the necessary arrangements by May 2024,” a diplomat from a developing country told us recently. (See also INB Co-Chairs’s interview, underscoring the need for ABS in a Pandemic Accord.)
But the timeline is not the only significant implication, as we have discussed before, the underlying approach of whether databases will be open-access (as most current ones are) or will it be a closed one affiliated to WHO processes, is an area of disagreement.
If you needed another indication of how important ABS is, it is learned that the EU is coming back to Geneva with a revised proposal on ABS provisions. (See prior submissions from the EU here.)
WALKING AWAY FROM IP?
What is also emerging is, for a few developing countries, walking away from strong language that dilutes intellectual property protection during public health emergencies, could potentially be an option, in return for an effective ABS mechanism that promises them resources and timely access to medical countermeasures.
“Some developing countries feel that it may not make sense to push hard on IP which is any case a difficult issue with the big players – the UK, the US and the EU. It may be better instead to focus on a strong set of provisions for ABS. This is something that can also be explained easily and clearly to domestic constituencies,” the developing country diplomat from Asia suggested.
Remember that these negotiations at WHO, come on the back of bitter negotiations at the WTO on temporarily suspending IP rules to address COVID-19, in what became a rallying cry for a TRIPS Waiver at the height of the previous pandemic.
No surprise that there is fatigue among developed countries on the matter who are determined to make IP a “no-go” area at WHO in the context of these negotiations. (This is irrespective of what they may be doing at regional and national levels.)
For many developing countries, taking forward the momentum of the waiver discussions at the WTO, was one of the key motivations in a Pandemic Accord. Those early impulses may now be weakening, some diplomats indicate.
This by no means, suggests that IP considerations will not be hotly debated and negotiated, but that countries might have to be selective in the kind of battles they pick relative to other priorities in a potential Pandemic Accord. The limited time period to conclude these negotiations is another factor that could force the hand of developing countries in making such choices.
(At the WTO, developed countries stalled negotiations on the TRIPS waiver for nearly two years, successfully deflating the original proposal, even as the death count from COVID-19 mounted with each passing month during October 2020 and June 2022.)
At a minimum, countries do see the Pandemic Accord, as a crucial opportunity to restate prior negotiated language on TRIPS Flexibilities at the WTO, in a WHO instrument. “This is in itself will be useful,” diplomats note.
A CONTESTATION OF THE FORUMS?
Already, the way IP will be discussed in the context of these negotiations is being tightly circumscribed by actors outside of WHO, including the WTO and the WIPO. For some countries, these institutions are the natural homes for IP debates. But not everyone agrees, since it has also been argued, particularly by the global south (as developing countries are loosely referred as) that discussing implications of IP on public health is firmly in the terrain of WHO’s mandate.
A number of sessions on IP and health were held at WIPO earlier this year, in response to what is ostensibly a demand from delegations in Geneva to understand these issues better. Do note that experts from WIPO and WTO, regularly participate in informal and formal discussions during these negotiations at WHO.
Although there is a formal trilateral collaborative arrangement between these organizations, these discussions have often been sensitive. In fact, some pro-IP stakeholders are not comfortable with WHO’s role in these discussions and have referred to this as “mission-creep.”
IP AND HEALTH: A DEBATE COUNTRIES CANNOT AVOID
It is important to appreciate that a number of different articles in the current iteration of Bureau’s Text are connected to each other. Whether it is transparency considerations, or commitments of research and development, from supply chain logistics to having language of waivers of IP rights, there is no way countries can evade and avoid discussion on IP in the context of public health emergencies. In addition, new rules on ABS could also have implications for IP.
TECH TRANSFER
Some delegates also suggested other ways to ensure that public health concerns win over trade priorities, including for example by having commitments on tech transfer. “So, without using specific and obvious language on diluting IP rights, we want to ensure that there is effective tech transfer during health emergencies.”
But note that so far none of the language on tech transfer is worded as an obligation. It is not yet clear how countries would change that given that the overwhelming push from the U.S. among others, to have this limited to “voluntary and on mutually agreed terms”, even as local and regional manufacturing are being seen as a defining outcome from the failure of an effective response to COVID-19. Industry laughs at having any obligations on voluntary licensing of technology.
SUPPLY ISSUES AND IP
To work around any discussion on impinging IP rights to boost local manufacturing, some of the proposals by developed countries have focused on addressing availability and affordability of countermeasures.
Take for instance, some of EU’s proposals that have suggested language on tiered pricing and pricing caps on medical countermeasures. As things currently stand, there has been lukewarm support to such policy preferences, that essentially maintain status quo. Or consider another of EU’s proposals on letting bilateral contracts between countries and manufacturers to determine contribution of medical countermeasures to developing countries at the time of an emergency.
While these proposals have not been outrightly discarded yet, there seems to be appetite to push the envelop further on more concrete obligations moving away from status quoist proposals.
THE MEDICAL COUNTERMEASURES PLATFORM
In parallel, the efforts to have a medical countermeasures platform, outside of these two track negotiations, continue. Such a proposed platform, also seeks to address access issues from the lens of availability and affordability without touching the IP question.
These efforts by WHO and other stakeholders including the EU, India, South Africa among others, to preserve what is essentially the model of the ACT-Accelerator, might have suffered a minor setback recently. In the latest and final text on Political Declaration on Pandemic Prevention, Preparedness and Response, for the United Nations General Assembly High-level Meeting later this month in New York, there is no reference to such a platform. (Efforts were made in this direction as we reported earlier.)
But this is not certain what the outcome of such a process will be. Although DG Tedros has been in favor of such a mechanism, G20 health ministers did not lend their weight to this in full force. (See TWN’s report from last month: G20 health ministers refuse to endorse establishment of interim MCM Platform)
Sources close to the discussions on this mechanism, suggested that even ACT-A partners such as Gavi and CEPI had questions on the overall direction of the mechanism. We have reported previously on how not only countries, but civil society members were deeply dissatisfied with the process and intended outcomes.
One diplomatic source suggested that inadequate consultations with member states on such a mechanism has weakened trust. Some countries are keen on addressing the access to countermeasures firmly in the context of on-going negotiations. Geneva-based sources suggested that countries could use the power of WHO’s governing body processes to block discussions on such a platform citing budgetary implications.
“TIME” AS A DOUBLE-EDGED SWORD FOR THE PANDEMIC ACCORD
There are fundamental differences between countries as they head into the crucial final months ahead of 2023. There is no indication, if and when countries will agree to begin negotiations, in the absence of a text that attracts consensus.
Paradoxically, even as the deadline for May 2024, to conclude these negotiations is becoming ever more real, it is this scarcity of time that might ultimately save this process, some diplomats believe.
“The deadline is the only thing keeping these discussions alive. The attention is moving away from public health in many countries,” a Latin American diplomat told us recently.
“What we need is time to negotiate well, but we do not need time to bring more substantive content. Everything is already on the table. We just have to start negotiating now,” the diplomat added.
Not everyone shares this view. “We should not be dictated by changing politics in national capitals. We should take the time to do this process well,” an African diplomat told Geneva Health Files.
A sense of urgency is not uniform across delegations.
Already there is frustration building on the slow pace of these discussions. Privately some suggest that some developing countries are slowing the process down, by what they feel as “not showing enough flexibility” in the discussions.
A curious dynamic is brewing in Geneva. While developing countries generally have more similarities in their positions on matters such as equity, there seems to be some propensity to be aligned with powerful member states such as the EU and the US, sources shared.
“Some developing countries want to be in the good books of rich countries and do not want to push hard, or stay firm on equity proposals,” a diplomat from a small developing country told us.
To be sure, bilateral trade deals and slippery geopolitics are undoubtedly shaping these negotiations.
In general, some developing country diplomats note the reluctance on the part of some developed country states to impose any obligation or any measure that would cramp on the interests of the pharmaceutical industry.
FIRST DRAFT WILL BE KEY
In the coming weeks, countries will decide on the path towards a first draft. It is not clear yet, whether the INB Bureau will be mandated to work on a first draft. Countries are hoping to get to a first draft for consideration at the next formal meeting of the INB in early December.
On-going informal consultations on key articles will inform and contribute to the preparation of the First Draft.
Such a draft will be key, sources say. For this will symbolize a negotiating text. However, it is expected that once all countries agree on the nature of this text as the basis for negotiations, countries may not be able to add new text into the first draft. That will be define the direction these negotiations take.
“The first draft cannot be the compilation text. There will have to be compromises made,” a developed country diplomat indicated, referring to the 200+ page compilation text that reflects proposals from all countries.
Time will be the commodity that will be used bluntly to beat this process into shape. Gloves are off.
See previous updates here:
[July 23] Formal Vs Informal Sessions: The Politics to Get Provisions In or Out?
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