TWN Info Service on Intellectual Property Issues (May09/07)
27 May 2009
Third World Network

WHO: Negotiations to continue on influenza virus and benefit-sharing
Published in SUNS #6706 dated 26 May 2009

Geneva, 25 May (Sangeeta Shashikant) -- Member states of the World Health Organization (WHO) participating in the sixty-second World Health Assembly have agreed to continue their deliberations on the framework for influenza virus and benefit-sharing, including the Standard Material Transfer Agreement (SMTA).

A two-day Intergovernmental Meeting (IGM) that had met earlier to finalise negotiations on the framework for influenza virus and benefit-sharing ended on 16 May without completing its work, with crucial core elements of the framework unresolved and with significant divergences between developed and developing countries.

Several countries, in particular the US, the EU, Australia and Japan, were not in favour of continuing with the IGM process, according to some delegates.

According to some delegates participating in the IGM and the World Health Assembly (WHA), these countries were not in favour of resuming the IGM, as they did not wish for their manufacturers to commit to fair and equitable sharing of benefits arising from the use of the virus samples and sequence information through an SMTA.

However, a large number of developing countries wish to see the process continuing, as the mandate of WHA 60.28, which led to the establishment of the IGM, remains unfulfilled.

In particular, the draft standards' terms and conditions for the sharing for virus and benefits have not been agreed to. This includes the SMTA which member states have agreed would be a component of the framework for influenza virus and benefit-sharing.

The WHA thus agreed to take forward the agreed parts of the framework that emerged from the IGM and entrust further deliberations to WHO Director-General Dr Margaret Chan.

The WHA agreed that the Director-General would "facilitate a transparent process to finalize the remaining elements, including the Standard Material Transfer Agreement (SMTA) and its annex, and report the outcome to the Executive Board at its 126th session in January 2010".

This language emerged as compromise language after days of consultation following a resolution proposed by a group of developing countries.
The draft resolution (A62/A/Conf. Paper No. 2) recognized in the preamble "the need for long-term solutions for Pandemic Influenza Preparedness and Response" and that "further work needs to be done on some key remaining elements of the Pandemic Influenza Preparedness Framework".

It requested the Director-General "to work with Member states to take forward the agreed parts of the Pandemic Influenza Preparedness Framework for the sharing of influenza viruses and access to vaccines and other benefits as contained in the report of the outcome of the Intergovernmental Meeting".

It also requested the Director-General "to facilitate and support further negotiations among all Member states to conclude the remaining elements, including the Standard Material Transfer Agreement (SMTA) and its annex and report the outcomes of such negotiations to the Executive Board at its 126th session in January 2010".

The draft resolution was proposed by Argentina, Bangladesh, Bhutan, Brazil, Chile, Cuba, Ghana, Guatemala, India, Indonesia, Iran, Maldives, Myanmar, Sri Lanka, Timor Leste and Venezuela.

According to several delegations, several countries, in particular the US, the EU and Australia, were not in favour of continuing the "negotiations".

The Czech Republic, on behalf of the EU, proposed language to dilute the proposed draft resolution, i. e. "Request the Director General to further work with member states and experts on concluding the remaining elements" and to report to the Executive Board in January.

However the compromise language agreed to was that the Director-General would facilitate a transparent process to finalize the remaining elements.

Many developing-country delegations spoke in favour of continuing the deliberations to conclude work that had begun on influenza virus and benefit-sharing.

Brazil reaffirmed the virtue of multilateral efforts. It said that members were bound by the single undertaking principle that "Nothing is agreed until everything is agreed".

India said that the half-finished work of the IGM cannot be left as it is. It further said that the SMTA will provide the legal underpinnings of a fair and equitable system which will facilitate fair and equitable sharing of benefits including vaccines.

Cuba said that there was a need to look at the issue from a long-term perspective and that members should not rush into hasty discussions. It also stressed the need for multilateral discussion.
Indonesia also stressed the need for long-term solutions. It added that it had high expectations of the WHO Director-General.
Iran said that it was important to finalize the process and entrusted the Director-General to undertake all necessary work prior to a final round of negotiations.

Director-General Dr. Chan also did not seem keen to continue the IGM process.

On the new process, Chan said that she needed flexibility and would observe geographical balance and a mix of skill.

Several countries pushed for a more open-ended process that would allow all interested member states to participate. However, Dr. Chan appeared reluctant for that to happen.

Bangladesh said that during negotiations, if a country is not at the table, it is likely to be on the menu, referring to how a non-inclusive negotiating process can be to the disadvantage of developing countries that are not part of the process.

It expressed disappointment that the IGM process that was held on 15-16 May managed to delete any reference to the LDCs, simply because a previous informal process of which it was not a part of agreed to do so.

Bangladesh said that it agreed to the deletion, as it did not wish to obstruct the process. However, it said that the LDCs had a legitimate voice in the process, as they also needed stockpiles and had companies that had aspirations to manufacture vaccines. It stressed that LDCs should be part of the process.

Argentina, supported by Venezuela, sought assurance that the process would be open to participation by all countries, and wanted an "open" process.

The matter was resolved with Dr. Chan suggesting a "transparent process" instead of an "open process". Dr. Chan also said that she will ensure that the process to finalise the remaining elements is "participatory" and "done in a transparent and fair manner", with "the views of all countries taken into account". +