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

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 three 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 before CAFTA can go into full effect.

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