Elizabeth McClintock

Conclusion: Putting It All Together

“Achieving better health outcomes for all.” This is a noble endeavor, and in an increasingly interdependent world this goal can no longer be accomplished by only those who work in public health nor through more traditional avenues of increasing access to primary health care or augmenting health budgets. To address the major health crises of today and to prevent or mitigate them in the future requires all of us to seek collective agreement and actions within and across countries. As we have demonstrated throughout this guide, effective collective action is achieved by developing and implementing comprehensive negotiation strategies. And these actions must be taken both within and outside of the health sector by a range of actors, not simply health policy-makers.

Meeting Implementation Challenges

The implementation of a negotiated agreement—including follow-up, monitoring and revision as needed—is step four of the mutual gains approach. Crafting an agreement on paper that all parties can support “in principle,” without facing the core question of whether and how they are prepared to implement it, generally leads quickly to implementation failures, loss of credibility for the agreement, mutual recriminations among the parties and skepticism about the potential for renegotiation to produce a better outcome. Moreover, many international agreements have “free rider” problems: that is, if most countries comply with an agreement, some countries may be able to violate it while still benefiting from the compliance of the others. For example, countries that have committed to limit greenhouse gas emissions may decide that keeping the costs to their industries low is a higher priority than reducing their emissions—all the while hoping that other countries will continue to hold their industries to their commitments. Negotiators therefore should lay the groundwork for post-negotiation success during the negotiation process. It is crucial to anticipate possible implementation challenges and address them before reaching an agreement. These include unresolved conflicts of interest, insufficient human and financial resources, difficulty monitoring effectiveness, unanticipated new factors and institutional resistance to change.

Case II—Negotiating Access to HIV/AIDS Medicines: A Study of the Strategies Adopted by Brazil

The bilateral dispute between Brazil and the United States with regard to Brazil’s protection of intellectual property has gone on for longer than a decade without a definite resolution. The issue gained momentum when Brazil introduced a program of fighting AIDS and made changes in domestic legislation to facilitate its implementation. The U.S. believes that Brazil’s actions were in direct violation of its obligations to protect intellectual property rights (IPRs) under the multilateral agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Brazil maintains that it has full legitimacy to use all necessary means to save its population from the AIDS pandemic.

Issue Framing: Making Your Concerns a Global Priority

One of the challenges stakeholders in global public health negotiations face is how to focus media, public and policy-maker attention on a specific public health concern in a way that motivates action. Whether the issue is the threat posed by a new virus (e.g., HIV/AIDS, SARS, H5N1/avian flu, H1N1/swine flu), the impact of the WTO’s TRIPS agreement on the access to essential medicines, or the marketing of unhealthy foods to children, defining the issue in a compelling manner is a key first step in any negotiating process.

Case I—Analyzing a Complex Multilateral Negotiation: The TRIPS Public Health Declaration

On November 14, 2001, trade ministers from around the world approved the Declaration on the TRIPS Agreement and Public Health (“Public Health Declaration”) at the end of the Fourth World Trade Organization (WTO) Ministerial Conference in Doha, Qatar. The Public Health Declaration was the product of months of negotiations—described in this case—examining the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) and its impact on the public health sector. Developing nations, confronted with emergencies like the AIDS crisis, encouraged the adoption of an approach to the TRIPS Agreement that would provide them with a greater degree of flexibility when dealing with matters related to public health. A bloc of developed nations, led by the United States, urged a more cautious reading of the TRIPS Agreement, emphasizing that patent protection was necessary for providing incentives to create new drugs. The Public Health Declaration reflected a consensus view that the TRIPS Agreement should be construed by governments in a way that supports the realization of their public health goals.

Building Institutional Capacity for Effective Negotiation

Negotiation, by definition, requires interaction between two or more parties seeking to find a mutually acceptable agreement. The ability of negotiators to successfully achieve their interests (and those of their constituents) is dependent on their own skills, the skills of their counterparts and the support of their institution to implement the agreements reached. While negotiators may have little control over the quality of their counterparts or contextual factors, institutions do have the ability to improve—over time—their organizational effectiveness in negotiations.

Managing the Negotiation Process

In global public health negotiations, the stakes are usually high and often time is of the essence. The outbreak of the SARS epidemic in late 2002, for example, illustrated how rapidly crises can occur and how immediate action may be required. Negotiations on immediate and short-term issues such as SARS, and even on long-term policies not triggered by a crisis, can be made all the more complex by diverse interests, conflicting understandings of underlying facts and linkages among the multitude of issues. Specific obstacles to joint problem-solving may include disagreement on the existence, certainty or severity of the problem; on the best way to tackle the problem or the likelihood of success; or on who bears responsibility to act, who will pay costs and who will manage the response. In the health sector, national leaders in key countries may be reluctant to acknowledge the urgent need to address the spread of a disease, either because they question the facts or because they fear that taking action will have negative impacts on their international image and/or domestic political support.

Coalition-Building and Process Strategies

Global public health negotiations are complex, multi-stakeholder processes that cover a wide range of issues. Effective health policies require the consideration of health-related issues in trade, environment and other areas, and are best achieved by involving a broad range of both governmental and nongovernmental actors in the policy-making and negotiation processes (Blouin 2007). Any single country—even a relatively wealthy one—has limited ability to influence such negotiations, or even to make itself heard. A country that joins together with other nations and nongovernment actors, however, can significantly increase its leverage in the negotiation process. Indeed, coalition-building strategies offer effective, and often necessary, means to advance one’s health agenda.