The chickens come home to roost

The Indonesia stance also needs to be considered in the context of “forum shifting” in the broader progression of ratchting up the rigour of intellectual property in favour of intellectual property holders. That is, the documented practice whereby “the United States and European Union shift the standard-setting agenda from fora in which they are encountering difficulties to those fora where they are likely to succeed”.

The ongoing consequence of this practice has been the adoption of “TRIPS-plus” standards with a further strengthening of rights holder’s intellectual property and a consequent decline in the ability of poor countries to afford and access patented essential medicines. From this perspective, shifting the CBD and TRIPS debates to the WHO merely takes advantage of Indonesia’s superior position in the WHO in dealing with this particular issue.

Discussion and conclusions

The elegance of Indonesia’s current position is that it accepts the predominantly rich and technologically advanced countries’ propositions about the paramountcy of intellectual property and asks them to comply with their rhetoric. In other words, enter into a CBD consistent contract to access the H5N1 influenza virus samples collected in Indonesia according to the terms and conditions negotiated between Indonesia and the WHO, and limiting the potential commercial uses through the negotiated ownership of intellectual property (principally patents).

Unfortunately, this position also undermines the WHO’s careful planning according to its Strategic Action Plan for Pandemic Influenza and its other contingencies and the ability to respond to pandemic influenza.

So far, the WHO has convened a range of intergovernmental meetings, an interdisciplinary working group without resolution, and established a virus tracking system and an advisory mechanism. The stalemate, however, remains intact, albeit there is the prospect for a resolution once the “price is right”.

This resolution, however, requires an appreciation of the broader debates about development and that the predominantly rich and technologically advanced countries address the impediments that have so far limited the promised economic developments that might alleviate poverty. This will almost certainly include the transfer of technology, know-how, financial support and incentives.

Undoubtedly, Indonesia will be pursuing these possibilities knowing that timely access to H5N1 influenza virus samples collected in Indonesia is almost certainly critical to a successful global response to pandemic influenza. Unlike the WTO’s Declaration on the TRIPS Agreement and Public Health where the predominantly rich and technologically advanced countries had the health solutions and could dictate the details of an agreement, this time Indonesia has the bargaining power.