As you will see from the account below the fold, the flu summit was a contentious and complicated affair. Only time will tell if it was even a qualified success, but there are reasons to be hopeful. Tip of the hat to Ed Hammond, one of the NGO participants, who provided the public health community with his perspective at a time when no one else was talking. This involved late hours for him at the end of long days. We are grateful.

Here’s his wrap-up:

Influenza Meeting Ends in Qualified Success

At the end of contentious meetings like the one on policies for sharing flu virus it is tempting to declare winners and losers amidst a huge volume of verbiage and paper. Yet is usually takes time to sort out what happened. The devil is not only in the details but how actors construe the details as we move forward. If forced to make an instant evaluation, I would say that on a scale of one to ten, the outcome is a seven, maybe a seven point five. That’s solidly in positive territory, even if this initial evaluation gets revised a bit downward with time and distance.

By the end of the morning session on Friday (23 Nov), it was clear that the meeting would produce a text, in quasi-legal language, expressing the different ideas of countries on virus sharing and benefit sharing as they apply both in “principle” and in “operational” aspects. But an early stage text rife with contradictory ideas and brackets (indicating lack of agreement) can easily die.

For many readers here the bottom line question will be whether Indonesia will share viral isolates as we go forward, but understanding the process is important to assure that any agreement, interim or otherwise, lasts a week or is more durable.

Bracketed text in the final text represents issues still under discussion. But the [bracketed] text is useless without a plan for coming to agreement upon it. Such a plan was a major outcome of the meeting. rough draft documents now exist containing ideas from many countries and a run-though has been done to start to agree on details. The Inter-Governmental Meeting (IGM) will come together again to keep negotiating. Officially, the meeting is not over, only “suspended” until a near term resumption, probably a 5 day affair in July 2008. Thus, the text from here has the potential to become the durable solution that the world needs to keep viruses moving (and start real benefits for developing countries flowing).

“More meetings” is not an outcome satisfying to many and provides no immediate relief, but it remains the most important outcome of the meeting. The text has many good ideas. As important as what did happen is what didn’t: The US and the EU will not likely succeed in claiming the problems with the GISN [Global Influenza Surveillance Network] can be fixed by maintaining the status quo. The benefits of the system will not be just be a vaccine stockpile. There will also be material transfer agreements (MTAs, or “standard terms and conditions”).

There are many vexing details to work out. The working text and submissions by countries (still on the table) for the operational aspects of the New System, including draft standard MTAs, is fifty nine pages long. The principles text, not as long, is anything but simple. Most importantly, however, there is a plan to work through it all.

The next steps didn’t come easily. The meeting didn’t end until nearly 11 PM, five hours late. From 3 PM onwards, it was occupied with a “statement” summarizing the results of this meeting and a paragraph describing the next meeting. The “statement” should not be confused with the text for future negotiation. These are different documents. While the text remains to be discussed and developed at future meetings, the statement is a short, two page conclusion from this meeting.

Initially the “statement” was to set out two key interim measures to be taken as governments continued to work toreach a long-term agreement (i.e. finish negotiating the text). Those two measures are the establishment of a “traceability system” to track the flow of viruses (and virus parts), and an advisory group to work with the Director General to make suggestions on how to improve the the virus sharing system. But the statement contained poison pills, because the US and the EU want(ed) the GISN reform process stillborn. Neither one presented a significant new idea at this meeting and that inaction at this important time will be what their participation is remembered for.

The unacceptable conditions included references to “security”, vague mandates to the Director General and, as is becoming the norm from the US and EU, explicit and coded references to the IHR [International Health Regulations] suggesting (contrary to its actual text) that the agreement trumps national legislation and requires transfer of biological materials. This latter bit is unacceptable to Indonesia because the US and perhaps the UK have refused to return Indonesia viral isolates, claiming that their national laws prevent it.

If the statement had been adopted as initially presented it is likely the “interim” measures would have become permanent and the text would have wound up in the trash heap. The GISN would have acquired an ornamental advisory board and a traceabililty system of dubious quality. And the security and IHR language would have resulted in the diplomatic equivalent of an Indonesia vs. WHO (with the US pulling WHO’s strings) celebrity deathmatch, resulting in Indonesia either giving up or formally withdrawing from the system.

Fortunately, this didn’t happen. Under pressure from an assortment of developing countries the US and EU abandoned their positions on the statement. Brazil weighed in to reject national security language in the statement and it (and Chile) demonstrated they are at least a match for the US, Canada, and others when it comes to the finer diplomatic arts of negotiating text.

When India asked the EU why it had such a fixation about about inserting international law (mainly coded IHR and security references) into the paragraph about sharing viruses in the interim before a durable solution is agreed, the EU was forced to admit its intention was say that international law trumps national legislation, and that – in simple terms – all governments have a binding international obligation to send disease samples. (NB: the IHR does not require this. Remember, too, the context: Indonesia is being denied return of viruses “because of national legislation” in US and maybe UK).

This attempted manipulation of international rules and the double standard with respect to national law produced a backlash in the entire developing world against the EU. India’s suspicions were confirmed, while Thailand and others weighed in to ask the EU to desist. Africa had already been alienated over failure to consult. Canada made a lonely and clumsy attempt to aid the EU. It failed.

At this point the attempt to fashion a closing statement was on the verge of collapse. Ironically, and perhaps chagrined it might have pushed the EU, it was the US that tried “shuttle diplomacy” between the EU and other countries to come up with a solution. It was a humbling half hour for the US delegation. Agreement remained elusive. The Director General sang “Getting to Know You” (yes; not a figure of speech. She really sang. Think of the poor interpreters]. She then personally joined the fray, shuttling from corner to corner, consulting with countries (who were seated by region).

Ultimately the EU retreated and the poison pill was removed from the statement. Except for the inconvenient fact the Chair and others failed to properly consult with Africa before unveiling the statement (Africa will submit its formal assent next week), the statement has been adopted. We will have an interim tracing system for viruses (and parts of viruses) submitted to WHO Collaborating Centers, and the Director General will work with an advisory group to make recommendations on system reform. The latter will participate in the process of revising the text of the long-term solution. The interim measures will not supplant or impede development of a New System.

On balance, this is not a bad result. Expect attempts to manipulate this agreement at the World Health Assembly in May 2008, and NGO eyes will be fixed upon the Director General’s advisory group (to prevent attempts to undermine the spirit of the agreement there).

In this abbreviated account of four intense days, much has been left out a lot, including the story of how the next Inter-Governmental Meeting (IGM) came to be a real negotiating session, and an open meeting for all countries, held in Geneva, rather than a small and opaque affair in an out of the way place (think Australia) where, if the wealthy countries had their way, Indonesia would have capitulated and GISN would have continued effectively unchanged. But this note account is already long enough.

As for the Indonesian viruses, I will not predict what Indonesia is going to do and I doubt anybody that has followed this process would be foolish enough to do so either. My slightly pessimistic view is, don’t hold your breath. I will observe this: Indonesia is part of an agreement that validates and confirms the importance of continuing to share viruses in the interim before a final agreement is reached to reform the system. That agreement also speaks about national law. The US asserts its national law prevents it from sharing viruses with Indonesia (and many other countries). At this point, it would indeed be an expression of goodwill on the part of Indonesia to send viruses to the CDC, especially if the US is unwilling to reciprocate. This is a stupid position of the US and the impasse must be broken if we are to have a good chance of moving forward. The idea that what’s yours is mine but what’s mine is just mine isn’t something that promotes sharing and equity.

As important as the current Indonesia viruses are, this process is no longer Indonesia versus everyone else. There are many more countries and interests now at the table. This is now about transforming the GISN with the principle of transparency and fair and equitable sharing of the benefits that arise from influenza research and, in doing so, improving pandemic preparedness and public health.

Let’s hope it can be done quickly.

We’ll be keeping an eye on it. Previous happenings and background here, here, here, here and here.