Of Medicines and Markets

Intellectual Property and Human Rights in the Free Trade Era

Angelina Snodgrass Godoy

• Publisher: Stanford University Press
• Year: 2013
• ISBN:
  9780804786577
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Sociologie

Central American countries have long defined health as a human right. But in recent years regional trade agreements have ushered in aggressive intellectual property reforms, undermining this conception. Questions of IP and health provisions are pivotal to both human rights advocacy and "free" trade policy, and as this book chronicles, complex political battles have developed across the region.

Looking at events in Costa Rica, El Salvador, and Guatemala, Angelina Godoy argues that human rights advocates need to approach intellectual property law as more than simply a roster of regulations. IP represents the cutting edge of a global tendency to value all things in market terms: Life forms—from plants to human genetic sequences—are rendered commodities, and substances necessary to sustain life—medicines—are restricted to insure corporate profits. If we argue only over the terms of IP protection without confronting the underlying logic governing our trade agreements, then human rights advocates will lose even when they win.

Chapter 1

Trading Health for Wealth

Edgar’s smile was not a polite nice-to-meet you smirk but one of those grins that first ignited in his coffee-colored eyes and then radiated, broad and beautiful, across his face. He settled into his plastic chair and leaned forward, friendly, engaged, eager to hear the questions we’d come to ask him. Among an organization of strikingly optimistic people, Edgar seemed particularly so. Yet, cast against his unassailably generous spirit, the one question he asked us was devastating: “Why would your Congress make it harder for me to get my medicine?”

My students and I met Edgar in the summer of 2004, in the offices of a Guatemalan HIV+ organization called Gente Positiva. At that time, CAFTA—the U.S.–Central America Free Trade Agreement—was awaiting ratification in all the member countries. The agreement was the first major extension of the NAFTA (North American Free Trade Agreement) model, hailed as a stepping-stone to an eventual Free Trade Area of the Americas; its announcement had touched off battles around labor rights, environmental protection, and threats to peasant agriculture. In addition, critics had begun to raise concerns about the agreement’s chapter 15, which governed intellectual property (IP) rights. In Guatemala in particular, a coalition of public health, human rights, and alter-globalization activists had come together to advocate against the IP provisions in CAFTA, which they argued would curtail access to medicines by limiting the availability of low-cost generics. On the day the Guatemalan Congress ratified the agreement, some took to the streets wearing jerseys emblazoned with the slogan, “My life is not for sale.”

This was a new issue for Central American human rights advocates. Indeed, CAFTA itself was something of a turning point for the movement, marking a new era of engagement with global economic structures.

Guatemala, like some other countries of the region, had only recently emerged from a prolonged armed conflict that had inflicted deep and painful wounds on the social fabric; a UN Truth Commission had declared in 1999 that the atrocities committed in the context of the thirty-six-year war constituted a genocide against the indigenous Maya. When I began research on human rights issues in Guatemala in the mid-1990s, the field was dominated by discussions of postwar justice and reconciliation. Forensic anthropologists spearheaded the scientific exhumations of mass graves littered across the countryside; lawyers undertook the careful work of knitting together testimonies with legal tools, seeking accountability for wartime atrocities; the UN Mission in Guatemala, tasked with verifying compliance with the Peace Accords, issued periodic reports on the status of implementation efforts; human rights organizations documented threats against witnesses in court cases and called for truth telling about past violence. Everywhere, the focus was on issues related to state violence.

But by 2004, when we met Edgar, things had shifted perceptibly. Donor support for the various legal accountability efforts had waned, perhaps in response to disheartening outcomes—even today, the military leaders responsible for crimes against humanity have largely eluded justice—or perhaps in reflection of a broader reframing of global human rights concerns in the wake of 9/11. The UN Mission had left the country. Various forms of international assistance were still present, but they tended increasingly to place priority on alleviating the region’s enduring poverty rather than promoting postwar justice. The genocide had mostly slipped from the headlines. In this context, beginning in 2003, behind closed doors and without any involvement from civil society organizations, the governments of the United States and various Central American countries—Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua—had hammered out a comprehensive agreement that established new rules and procedures for trade relations.

If some in the human rights community had until then considered trade law a technical province of administrative procedures largely unrelated to its core concerns with justice and accountability, such assumptions faded fast when CAFTA’s content was unveiled in 2004. Amid the layers of legalese were new rules for doing business across borders; new limits on what national laws could regulate, promote, or prohibit vis-à-vis the conduct of private industry; new institutions for adjudicating disputes between corporations and governments; and new ways of envisioning the social contract.

Given the history of Central America, it was not difficult to imagine that these ways of reconfiguring corporate relationships with states in an interdependent global arena could have human rights implications. This was nowhere clearer than in Guatemala, once the proverbial “banana republic” where an attempt to nationalize lands held by a U.S. corporation—United Fruit, now known as Chiquita—had triggered the ouster of democratically elected President Jacobo Arbenz in a 1954 coup backed by the CIA (Central Intelligence Agency). The violence that followed the coup rapidly devolved into civil war, as a series of U.S.-backed dictators took turns battling Marxist guerrillas and eventually waging genocide against the country’s indigenous majority. So, some seven years after the signing of the country’s Peace Accords, when the text of CAFTA was made public, those paying attention immediately recognized what was at stake and scrambled to organize in response.

But it was an uphill battle: Prolonged civil wars had turned societies inward, had polarized them along ideological lines, and had decimated civic engagement. The issues in the agreement were complex and cloaked in language that was difficult to understand. And poverty, the lack of education, and underemployment already had the majority of the region’s population locked in a daily struggle for subsistence, in which informing themselves on the finer points of trade law, let alone manning the barricades, seemed a tall order. While progressive unions, peasant groups, and—to a lesser extent—environmental organizations rallied their bases to oppose relevant chapters in the agreement, there was no preexisting Central American advocacy group dealing with intellectual property. The issue was brand new.

During the CAFTA ratification process, I sought in my own limited way to contribute a human rights voice to the intellectual property discussion through opinion pieces, meetings with congresspeople, and general advocacy. In one of those discussions, when my students and I shared our work with our congressman before a research trip to Guatemala, he advised us to meet with people who’d be affected by CAFTA’s IP chapter while there and to note their stories, even take their pictures so as to later be able to personify the harm this legislation would bring. Following his advice, we went to the offices of Gente Positiva to meet some of the HIV+ patients who the organization was concerned might lose access to antiretroviral drugs under the terms of the agreement’s more restrictive intellectual property laws. Edgar was one of several HIV+ patients kind enough to share his story with us that July day.

I always tell my students to be mindful of the ethics of interviewing and to give the interviewee a chance to turn the tables and pose questions, too; it’s only fair, after all, if we are asking them to open their lives to us, that we might be expected to do the same in return. So after an engaging, pleasant conversation with Edgar in which we mainly discussed his experiences living with HIV and his challenges obtaining the antiretroviral drugs he needed to stay alive, we asked him if he had any questions for us.

“Yes,” he said, smiling, as he had throughout our time together. He paused slightly to gather his thoughts. “Why would your Congress make it harder for me to get my medicine?”

This was the question that I found devastating. I stammered something about the agreement’s complexity and voters’ ignorance, but a real answer would have had something to do with the agreement’s unstated premise that certain lives were expendable, and I didn’t have the courage to say that. He smiled—again—and graciously let it go. But in that moment I made a silent commitment to share his story and that of other Central Americans whose access to drugs was challenged by U.S. trade policy.

Why Intellectual Property Matters

The intellectual property debate should matter to us, I believe, on at least two levels. First and most directly, IP affects who gets access to medicine—including, in cases like Edgar’s, medicine that marks the difference between life and death. If we care about human rights, we need to understand how these policies work and the impacts they have on real people’s lives. Those of us who are Americans have a particular duty to do so, as these policies are promoted in our name, using our tax dollars.

Secondly, however, intellectual property should also matter on another level to those of us concerned with human rights. We know human rights tactics can work—within limits—against the violation of civil and political rights by authoritarian governments. Amnesty International cut its teeth contesting the torture and imprisonment of political opponents in the 1970s Southern Cone; Human Rights Watch began as Helsinki Watch, scrutinizing and denouncing abuses behind the Iron Curtain. Decades later, a vast and vibrant field of interdisciplinary scholarship in human rights has examined when and how such tactics have proved effective at reining in repression through appeals to international norms.

Yet today’s human rights headlines increasingly call attention to new challenges. While the iconic figure in decades past was the prisoner of conscience, the courageous dissident imprisoned for daring to speak his mind, today’s struggles feature new actors: indigenous people opposing the construction of dams on their ancestral lands; factory workers rallying against the “cut and run” practices of transnational capital; AIDS patients demanding affordable drugs from an industry whose pricing places the pills beyond their grasp. In these and other cases, the international legal order is not always an antidote to abuses; some rights violations stem from transnational structures, and some violators even justify their actions by citing international trade law. Particularly as regards social and economic rights, sometimes the challenge requires empowering a reticent state rather than restraining a repressive one. In this context, how potent are the concepts and tools of human rights at prompting counterhegemonic transformations? Are transnational human rights capable of challenging global economic dictates, or do they merely provide a fig leaf for contemporary forms of exploitation?

I believe the struggles over intellectual property and access provide a uniquely propitious site for examining this question. For although there are numerous points of friction between human rights and international commercial law, IP represents the site of clearest contradiction between these two ways of ordering our world. The way in which this conflict in perspectives is resolved, then, bears broad relevance to a host of contemporary struggles over rights, justice, and the role of the market in social life.

Why Central America Matters

Central America makes for a particularly apt site from which to examine the frictions between intellectual property and human rights, for three reasons. First, CAFTA represents the largest trade agreement to date to include “TRIPS-plus” IP provisions, a term that refers to standards exceeding those established under TRIPS (the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, the global agreement establishing a single universal set of IP standards for all WTO [World Trade Organization] member nations). What’s more, the IP standards in CAFTA are, on balance, more demanding than those contained in bilateral trade agreements that preceded it and in agreements that followed it.¹ This means that, at this point, CAFTA’s standards represent the global high-water mark in intellectual property protection.

Second, the right to health enjoys a relatively high degree of constitutional protection in the countries of Central America. A recent study found that 90 percent of court cases worldwide in which the right to health was invoked to seek access to medications came from Central and South America, suggesting that those seeking to advance legislative or judicial frameworks that prioritize to the right to health might enjoy some advantages in this region (Hogerzeil et al. 2006, 305). In this sense, the CAFTA countries find themselves situated on the front lines of this debate; how they navigate these competing pressures may contain lessons for other parts of the world.

And third, it is important to examine the impact of intellectual property policy in a diversity of national and regional settings. While the years since TRIPS have seen important public health victories, not all of these can be broadly generalized; the attention they have generated may yield mistaken assumptions about what policy options are possible. For example, the bold stance of Brazil, a country that has repeatedly granted compulsory licenses to allow the domestic production of generics, is made possible by the country’s status as an economic powerhouse and the considerable capacity of its domestic pharmaceutical sector—advantages most developing countries lack (Shadlen 2009). The high-profile campaign of South African HIV+ patients and their transnational allies, similarly, was successful in forcing the United States to withdraw its suit against their government for allowing the production of generic antiretrovirals, but not all countries or diseases command such sympathy in the court of public opinion (or, for that matter, in any court). And while the coalition building among Global South countries at the WTO made possible the landmark Doha declaration, which lays out key flexibilities in IP rules that states can invoke to protect public health, in recent years the most aggressive forms of IP lawmaking have taken the form of bilateral trade agreements struck between the United States or EU (European Union) and much less powerful nations. The negotiating climate in such deals makes it much more difficult for weaker countries to secure human rights concessions. For all of these reasons, then, it is important to investigate the implications of intellectual property policy for the right to health in relatively smaller nations, which confront strong IP pressures yet may not enjoy the same policy making (or politics making) possibilities as trailblazers like Thailand and Brazil.

Research Design

When I embarked on this research project, I was driven by two related research questions. The first was an empirical one: I wanted to know what CAFTA’s impact would be in Central America, and I was concerned that it seemed there was little interest in rigorous research on this point. In brief, I thought that by conducting some of this research myself I might actually make a difference. And second, I was interested in a broader theoretical question: Will the tools of human rights be effective against threats arising from the global economic order? Or, to put it differently, even if we could determine with scientific precision what CAFTA’s impact on health would be, could we really do anything about it?

I began my work by tackling the empirical heavy lifting. I started out by working to predict the agreement’s impact by analyzing its implementation legislation across all six CAFTA countries, including the Dominican Republic. (Although most commonly referred to as CAFTA, the full name of the agreement is the U.S.–Dominican Republic–Central America Free Trade Agreement; it is occasionally referred to as DR–CAFTA because the Dominican Republic was rolled into the treaty following its negotiation in Central America.) My colleague Alejandro Cerón and I found that, despite responding to a uniform text, the process of its implementation was quite varied across member countries (Cerón and Godoy 2009; Godoy and Cerón 2011).

These findings left me both deeply concerned that so little attention was being paid to this issue in the Central American context and troubled that so few Central American health advocates were immersed in these issues. In response to this perceived need, I sought and obtained support from the Ford Foundation to carry out a range of activities on intellectual property and health rights with Central American public health researchers, aiming to build capacity in the region for engagement with this highly technical issue. Jointly with Alejandro Cerón, I spearheaded the creation of a network of public health researchers from across Central America, called the Central American Network on Intellectual Property and Access to Medicines (or Red CEPIAM, by its initials in Spanish) to monitor IP’s effects in the context of national and international commitments to the right to health. The participating researchers, who ranked among the region’s leading figures in public health policy, conducted studies of IP implementation in their countries and shared their findings with civil society, government, and intragovernmental groups like the Pan-American Health Organization. Discussions with these researchers and our counterparts in Colombia—where network meetings were held—provided me invaluable perspective on how this global issue connected to Central American realities.

In some ways, this intervention was guided by a classic top-down approach to the problem, characteristic of transnational advocacy networks: Thanks to research already conducted elsewhere, and championed by the global access to medicines campaigns led by Doctors Without Borders, Oxfam, and others, we already knew the dangers of intellectual property, but what we lacked was specific data about how those dangers might manifest themselves in particular Central American countries. By involving leading Central American public health researcher-advocates in this data-gathering exercise, we hoped to fill the information void and spur greater attention to this issue in the region as the results of these studies were shared.

Over the course of this work, however, my perspective changed. What I had originally interpreted as a lack of capacity for engaging IP in Central America turned out to be a commentary on the diversity of possible understandings of health rights and the differences of power and perspective in transnational advocacy networks. The story this book tells, therefore, is primarily the product of a second, related set of explorations of Central American intellectual property issues. Through a series of in-depth interviews conducted over the course of four years, I approached these questions from a more bottom-up approach focusing on the experiences and perspectives of a range of actors in three Central American countries: Costa Rica, El Salvador, and Guatemala.

I selected these particular countries for various reasons. Costa Rica was an obvious choice, given its universal health care system; though all Central American countries embrace—on paper—the idea that health is a human right, only Costa Rica comes close to making the right a reality for most of its people, so it was vitally important to understand how such a successful health system might be affected by new IP norms. Guatemala was also clearly important to include, as the region’s largest economy and the site of its most visible tussles over intellectual property policy—and, at one point, the country with the most aggressive data protection policies anywhere in the world. And El Salvador posed other interesting puzzles: Although the country had seen massive mobilization in defense of health rights in the 1990s, on the question of IP and medicines its civil society had been strangely silent; the local generic industry even made public statements expressing tepid support for the trade deal. So I carried out interviews in all three sites, not to test a single hypothesis with three case studies but rather to inform a more open-ended set of questions about the politics behind IP policy and their implications for the transformative potential of human rights.

My interviewees included members of trade agreement negotiating teams, pharmaceutical industry executives, public health advocates, medical practitioners, patients involved in organizations working on access to medicines issues, members of national legislatures, health sector unions, human rights lawyers involved in access cases, judges, officials of state health institutions, and staffers in intellectual property offices. In many cases I held follow-up conversations with the same people in subsequent years and was invited to observe meetings or participate in discussions of related issues.

I found that although many were willing to reiterate the public position they or their allies had already taken in CAFTA debates—most had a sound bite ready on the matter when I first contacted them—when it came to explaining the reasons behind those positions or the political alignments that produced them, many spoke only with considerable caution. Given the inflammatory nature of public accusations lobbed across ideological divides on this...