[Ip-health] TAC/ALP Submission re SACU-US FTAA

[Justin Noble]

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-----Original Message-----
From: FOTAC-NA Discussion List [mailto:FOTAC-NA@LISTSERV.CRITPATH.ORG]On
Behalf Of Njogu Morgan
Sent: Wednesday, February 04, 2004 11:13 AM
To: FOTAC-NA@LISTSERV.CRITPATH.ORG
Subject: FW: TAC/ALP Submission re SACU-US FTAA


-----Original Message-----
From: Njogu Morgan [mailto:Njogu@tac.org.za]
Sent: 04 February 2004 04:33 PM
To: PATAM (africa@tac.org.za); TAC International Activist
Subject: TAC/ALP Submission re SACU-US FTAA

Dear all,

This morning, TAC and the AIDS Law Project submitted the attached memorandum
to the South African International Trade Negotiating Team + a statutory body
charged with fostering dialogue among civil society, business and
government.  Below the introduction:




Introduction

On 4 November 2002, United States Trade Representative (USTR) Robert
Zoellick formally notified US Congressional leaders of President Bush's
intention to initiate negotiations for a free trade agreement (FTA) with the
Southern African Customs Union (SACU), which includes Botswana, Lesotho,
Namibia, South Africa and Swaziland.  These negotiations are now underway,
with the next round scheduled for 23 February 2004 in Namibia.  As far as we
are able to ascertain, the negotiators plan to conclude their discussions in
or around October 2004, with a US-SACU FTA being signed before the end of
the year.

The Treatment Action Campaign (TAC) and the AIDS Law Project (ALP) believe
that trade between nations, when conducted within the framework of a
reasonable and fair set of rules that adheres to the triple-bottom line of
environmental, social and commercial sustainability has the potential to act
as a tool for attaining developmental priorities.  Our support for the
ongoing negotiations would therefore be predicated on the agreement strictly
adhering to these principles.  Yet the US position, as clarified in Mr
Zoellick's correspondence with Congress, raises cause for concern.

In his letters to the Speaker of the House of Representatives and the
President of the Senate, Mr Zoellick set out reasons for entering into such
negotiations, as well as the USTR's "specific objectives for negotiations
with the SACU countries". [1]  In particular, Mr Zoellick raises the
following US objectives:

"We plan to use our negotiations with the SACU countries to . address
barriers in these countries to U.S. exports - including high tariffs on
certain goods, overly restrictive licensing measures, inadequate protection
of intellectual property rights, and restrictions the SACU governments
impose that make it difficult for our services firms to do business in these
markets. We also see the negotiations as an opportunity to advance U.S.
objectives for the multilateral negotiations currently underway in the World
Trade Organization (WTO)." [2]

In our view, a number of the specific objectives identified have the
potential to undermine the financing and provision of health care services
in SACU countries, both in the public and private health sectors, as well as
the rights of people living with HIV/AIDS.  In particular, if translated in
binding commitments, many of these objectives have the potential to limit
the ability of the South African government in discharging its
constitutional obligations, primarily in respect of the right of access to
health care services.  In our view, such undertakings would be an
unconstitutional exercise of power.

This memorandum highlights our concerns in respect of two key areas:
intellectual property (IP) and trade in services. [3]  We are equally
concerned about two other key areas, namely investment and government
procurement.  In respect of the former, our concerns are informed largely by
the potential for the investment provisions in any FTA to entrench a dispute
settlement mechanism entitling investors to sue governments directly.  While
the other parts of the FTA would only be enforceable as between states, the
investment chapter would provide the back door for a pharmaceutical company,
for example, to sue a SACU member state for failing to amend its legislation
in line with the chapter on IP.

In respect of government procurement, we support a principled approach of
transparency that is efficient and swift.  Yet we are concerned that rules
on procurement may unfairly preclude necessary and urgent action, such as
the procurement of essential medicines for dealing with a health emergency,
such as a cholera outbreak.  We believe that SACU states should not be held
hostage to an unwieldy and unnecessary tendering process.



------------------------------------------
Treatment Action Campaign
njogu@tac.org.za <mailto:njogu@tac.org.za>
ph: +27.11.339.8421
mobile: +27.73.358.1282
fax: +27.11.403.1932
web: www.tac.org.za <http://www.tac.org.za>  |www.patam.org



  _____

[1] Copies of these letters are attached hereto.
[2] Emphasis added
[3] A more detailed and technical document will be supplied in due course.
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