[Ip-health] IP Watch: UN Committee Questions CAFTA’s IP Provisions On Human Rights Ground

[Judit Rius Sanjuan]

UN Committee Questions CAFTA’s IP Provisions On Human Rights Ground

http://www.ip-watch.org/weblog/index.php?p=850

By Kaitlin Mara for Intellectual Property Watch

The United Nations Committee on Economic, Social, and Cultural Rights
(CESCR) in a recent meeting echoed concerns raised by Costa Rican
opponents of the Central American free trade agreement with the United
States, particularly with regards to intellectual property rights.

Costa Rican President Oscar Arias signed the Central American-Dominican
Republic-United States Free Trade Agreement (CAFTA-DR on 21 November
after nearly three years of national debate, more than 3 years after it
was signed by the country’s trade representative according to news
sources. The last of seven signatory countries to pass the trade deal
into law, Costa Rica has had fierce internal debate about potential
consequences - both beneficial and detrimental - of the agreement.

The CESCR falls under the United Nations Office of the High Commissioner
for Human Rights and is charged with overseeing nations’ compliance with
the International Covenant on Economic, Social and Cultural Rights
(ICESCR). The states meet periodically with CESCR experts to review
progress in meeting their human rights commitments. This year’s session
met from 5 to 23 November, though the main discussion days for Costa
Rica were on 6 and 7 November.

The committee’s concluding observations stated: “The committee notes
with concern the potential impact of the entry into force of the [CAFTA]
on the state party’s obligations under the Covenant and, in particular,
on traditional agriculture, labour rights, access to health, social
security and the intellectual property regimes protecting, inter alia,
access to generic medicines, biodiversity, water and the right of
indigenous communities associated to these resources.” IP provisions
fall under Chapter 15 of the agreement.

The trade agreement was so hotly contested in Costa Rica that the
country held the first national referendum in its history so that
citizens could vote on whether to accept it. The referendum supported
CAFTA, by a very narrow margin - with only 51.61 percent of the votes in
favour. Concluding observations from the committee also encouraged Costa
Rica to take “the measures necessary” to provide access to health care
and generic medication, and to ensure that “intellectual property
regimes are not adversely affected” by CAFTA implementation.

In a briefing document for the discussions, human rights and trade
non-profit 3D cited specifically Article 15.9.6, which it said allows an
extension on patent terms for ‘unreasonable delays’ in the processing of
the patent, and could delay the appearance of generics on the market for
up to five years. Article 15.10.1 potentially gives owners of
pharmaceutical products exclusive rights to not only the drug itself,
but also to all its health and safety test data - again, for up to five
years, it said. This presents a de facto patent extension from the
perspective of generic companies unable to undertake the research and
development process in that time.

This was a unique venue for discussing concerns about the effect of
intellectual property on access to medicine. The CESCR meets every few
years with ICESCR signatories for a ‘dialogue’ on where they are with
regards to meeting the Covenant’s human rights standards. According to
Caroline Dommen of 3D, the format of ICESCR as a legal agreement - as
well as a moral and political agreement - to protect human rights can
have a strong role to play as an additional accountability tool for
holding states responsible for the social impact of economic treaties.

While currently there is no complaint mechanism for individuals who feel
that their ICESCR rights have been violated, one is in the process of
being drafted, though as an optional protocol that is non-binding unless
ICESCR signatories ratify it separately.

Members of the CESCR were unavailable for comment at the time of this
writing.

Zoe Goodman, a 3D representative who attended the meeting, said that
although the Costa Rican government delegation promised to monitor CAFTA
implementation for human rights violations, it failed to provide “any
specific measures the state is planning to take to ensure that the right
to health is not violated.” She added that she was pleased the Committee
brought up IP provisions as a human rights issue, but was disappointed
they did not ask follow up questions to determine details of Costa
Rica’s plan to ensure access to health services under the new patent
restrictions.

The 3D press release on the CESCR said that CAFTA-DR could cause
“medicine prices to rise by at least 800 percent” and expressed concern
that the widespread use of generic medicines, upon which Costa Rica’s
ability to provide health services for most of their population is
predicated, would be threatened by the stronger IP restrictions.

The Pharmaceutical Research and Manufacturers of America (PhRMA) said in
a press release that the trade agreement and its attendant strengthened
IP regime is likely to ensure better access to new medicines by
protecting incentives for innovation. The same release claimed that
following the ratification of the North American Free Trade Agreement,
patients in Mexico saw marked improvements in their health. Costa Rican
supporters of CAFTA-DR say that it also will provide increased economic
opportunities for the country and that a larger, more competitive market
will drive down prices to benefit poor consumers.

CAFTA’s provisions set a deadline of two years from the date of the
first signatory country’s implementation for all other signatory nations
to both sign CAFTA into law and undertake all national legislation
changes needed to comply with the agreement. This date is set as 1
March, 2008: two years after El Salvador put the agreement into force.
According to Costa Rican news sources, Costa Rica’s National Assembly
must still pass a number of complementary laws to before CAFTA can go
into full effect.

Kaitlin Mara may be reached at info@ip-watch.ch.

--
Judit Rius Sanjuan
Attorney
judit.rius@keionline.org

Knowledge Ecology International (KEI)
www.keionline.org / www.cptech.org
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