Civil society groups around the world have upped the ante in the global struggle to protect and promote access to medicine and focused their attention on the European Union-India free trade agreement (FTA) currently being negotiated between the two governments, reports Fauwaz Abdul Aziz of Third World Network.
Bolstered by the leaking of the negotiation texts of the EU-India FTA relating to the intellectual property (IP) provisions, thousands of activists have gone to the streets of capitals globally demanding that the EU desist from putting up further barriers against the supply of affordable generic medicines from India.
India is home to some of the major producers of generic medicines who supply medicines to millions of people. In 2008, 96 countries bought anti-HIV medicines from Indian generic antiretroviral (ARV) producers.
The availability of such medicines from India, much cheaper but of the same quality as the original, has saved thousands of lives of those affected not only by HIV but also by cancer, heart disease, mental illness and other conditions.
In Malaysia on 8 February 2012, a crowd of some 50 activists staged a protest at the European Commission’s office in Kuala Lumpur, calling on it to stop promoting what they assert are trade policies that would jeapordise the lives of millions in India and across the developing world.
The efforts made in solidarity with Indian PLHIV and other health rights campaigners who have also been protesting and calling for a worldwide week of action against the FTA, was by Kuala Lumpur-based Positive Malaysian Treatment Access Advocacy Group (MTAAG+), members of the Malaysian Trades Union Congress (MTUC) and groups working as a coalition on FTAs.
The groups also called on the EU to demonstrate the commitment to human rights that it had so often professed in other fora and on other issues and to drop its demands for all provisions in the EU-India FTA and other FTAs with developing countries (including Malaysia) that will adversely impact access to medicines.
“Access to medicines is a right for all and not a privilege for only those who can afford to pay the exorbitant prices,” the activists’ memorandum reads. The memorandum was submitted by MTAAG+ president Edward Low to the EU delegation’s attache and head of administration in Malaysia, Edward Feehan.
In India on 10 February 10 – the day the EU and Indian governments held a summit in the country’s capital of New Delhi – a few thousand people marched on its streets against the EU’s push for the IP and IP-related provisions impacting access to medicine.
“We have watched too many people die in places where we work because the medicines they need are too expensive,” Dr. Unni Karunakara, International President of M้decins Sans Fronti่res (MSF), was reported as saying. “We cannot allow this trade deal to shut down the pharmacy of the developing world.”
Similar protest rallies were held in Nepal and in other places across Asia, South America and in Africa. In Thailand, NGOs on 10 February, submitted an open letter to EU Ambassador David Lipman, in which they also raised concerns over the impact that an EU-India FTA might have on access to medicines. In London and Brussels, rallies and meetings were held demanding the EU stand down from its push to increase barriers against medical treatment.
Confronted on the concerns raised by activists from Act Up-Paris, European Commission for Trade, Karel de Gucht at a “Civil Society dialogue on Trade, Growth and Development” on 7 February in Brussels assured the meeting that it was the European Commission’s wish to promote “ethical trade” as well as to offer the poorest countries free access to the European market.
Leaked text shows up EU’s true intentions
Notwithstanding the EU’s assurances, leaked texts of the proposals for the EU-India FTA, however, indicate plans to the contrary, especially over IP and IP-related investments.
While some provisions in the leaked texts that have emerged profess respect for the 2001 Doha Declaration that reaffirmed the flexibilities contained in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips) that allow member states to circumvent patent rights for better access to essential medicines, they also reveal the EU’s push for provisions that go against the same Declaration.
In effect, the provisions sought by the EU will ultimately reduce India’s capacity to continue to remain a producer of generic medicines. These include enforcement provisions that:
- widen the enforcement net so that generic but legitimate and life-saving medicines could be detained or destroyed at the border;
- greatly increase the sanctions against alleged (proof not required) patent and trademark violations, leading to a possible ban on production, delay or even destruction of goods, while the producer faces significant damages and, possibly, bankruptcy charges;
- limit the Indian judiciary’s constitutional mandate to balance the interests of private profits against the interests of the public by way of alternative remedies; and
- extend liability to third parties – such as suppliers of ingredients used to produce generic medicines; generic medicine distributors and retailers; non-profits such as MSF who provide treatment; health programme funders; and even regulatory authorities – and thereby serve to deter anyone involved in the production, sale or distribution of affordable generic medicines.
The leaked documents also detail the EU’s proposal on the FTA’s investment chapter, which sees it attempting to expand the trade deal to cover investments in intellectual property and to include the controversial ‘investor-to-state’ dispute settlement mechanism.
In this way, big pharmaceutical and tobacco companies can sue the Indian government over disputes in relation to their investments in intellectual property – such as government policies to make mandatory tobacco warnings or measures to reduce the prices of medicines. India is already facing litigation by pharmaceuticals such as Novartis and Bayer.
Barriers against access to medicine
In a letter to Indian Prime Minister Dr Manmohan Singh on February 8, MSF’s Dr Karunakara noted that India has played a pivotal role in supplying affordable generic versions of drugs used throughout the developing world.
“It is vital therefore that further barriers are not created that threaten the supply of affordable generic medicines from India,” said Karunakara.
As a member of the World Trade Organization, he noted, India had amended its domestic laws to comply with its obligations under the TRIPS Agreement in 2005. Amongst the provisions was the re-introduction of product patent protection for medicines.
At the same time, India had made use of flexibilities available to it under the TRIPS Agreement and introduced public health safeguards to protect and promote public health and ensure that generic production continues from India.
All of this could change, warned Karunakara, if fears by health access activists relating to the EU-India FTA are realised.
In order to ensure that the EU-India FTA does not undermine access to medicines, the MSF president said, the additional threats posed by the enforcement and investment provisions must be addressed.
“At a minimum, we would urge the Indian Government to request the following safeguards are contained in the roadmap to ensure that damage caused to people’s access to medicines is minimised:
the withdrawal of the IP enforcement measures, and as a minimum safeguard, the deletion of patents from the entire scope of the enforcement section;
the withdrawal of third party liability from the enforcement provisions;
the withdrawal of specific provisions dealing with injunctions from the enforcement provisions in order to preserve the existing flexibilitiesof the Indian judicial system;
border enforcement should be limited to the requirements of the TRIPS Agreement and as such exclude exports and trademark infringements; and
the withdrawal of IP and the investor-to-state mechanisms from the scope of the investment chapter.
“India has already shown that it’s prepared to stand firm against harmful demands from the European Commission. As the negotiations are reaching their final stages we urge you to maintain your vigilance and commitment to preserving the space for continuation of the generic production of medicines that we and so many in India and beyond rely upon,” said Karunakara.
Malaysian workers mobilise
Back in Malaysia, meanwhile, top leaders of the MTUC and other civil society groups have also raised related concerns over the EU-Malaysia FTA as well as the Trans-Pacific Partnership Agreement (TPPA) that the Malaysian government is negotiating.
Reliable sources have indicated that the EU’s Trips+ demands to Asean countries, which it is presumably also pushing for in the EU-Malaysia FTA, as well as those that the US has made in the TPPA negotiations, would actually increase medicine prices by more than asserted over the EU-India FTA negotiations.
On 4 February, MTUC president Khalid Atan called for the 800000-strong workers’ movement to mobilise against both agreements on account of the many violations of rights that the deals are likely to entail but have yet to be addressed by the government. “It is time for MTUC to act, to move” the unionist told a forum in Petaling Jaya, just outside the capital.
The EU-Malaysia FTA is entering its eighth round of negotiations. EU officials have expressed hopes that the agreement can be signed by year end. Nine TPP leaders – including Malaysian Prime Minister Najib Razak – have meanwhile reportedly agreed to work to complete a broad pact by July 2012.
Among the concerns of the MTUC and other civil society advocates are the lack of transparency and consultations with representatives of workers’ groups over the EU-Malaysia FTA and the TPPA, particularly given the history of lopsided provisions in favour of business and investor interests and the adverse effects similar agreements have had on the interests and welfare of people, especially vulnerable segments of society.
What is feared, said Khalid, is that the agreements eventually signed behind closed doors will spell disaster for workers’ rights as well as people dependent on affordable access to medicines and medical treatment.
Other activists, such as parliamentarian Charles Santiago, raised concerns that some government policy tools would be unavailable following the signing of FTAs as investor rights are enshrined to ensure their interests are protected, even as public interests are at risk by their business practices.
On a similar note, Lim Li Ching of Third World Network warned of the consequences if Malaysia signs onto agreements that allow corporations to sue the government directly if a policy or law were put in place in the public interest but is seen by the company as infringing on their ability to maximise their profits.
Sivarajan Arumugam from the FTA Coalition, meanwhile, recounted the actual results of trade liberalisation via tariff reduction elsewhere around the world, such as Senegal, which lost one-third of its domestic jobs in manufacturing following the implementation of lower tariffs. Zambia saw employment fall by 40 per cent in five years following similar trade liberalisation.
In the case of Malaysia and the EU, the reduction of export taxes on Malaysian raw materials will have implications for local industries, given the high-technology capacity and production capacity of EU countries in exporting, for instance, furniture that had been made from Malaysian forest products.
Workers in the Malaysian furniture industry face job cuts if their companies are unable to compete with EU companies importing raw materials cheaply into Europe to re-export finished products such as furniture back to Malaysia, said Sivarajan. Malaysian furniture makers can also lose market share in the EU and third countries if Malaysia has to remove export taxes on raw materials like wood.
Malaysian Human Rights Commission steps up
In an earlier meeting, officials of the Human Rights Commission of Malaysia (Suhakam) had said they will be deliberating over the possibility of carrying out a human rights impact assessment of the FTAs that the Malaysian government is negotiating given the concerns raised over the agreements’ potential violation of human rights.
Commissioners Khaw Lake Tee and Muhammad Sha’ani Abdullah also said they were aware of the concerns, particularly with regard to intellectual property and the related issues of patenting and access to medicine.
If the Commission agree to carrying out the human rights impact assessment, they would be the second Asean government to do so after Thailand.
The National Human Rights Commission of Thailand carried out a human rights impact assessment of the now abandoned US-Thailand FTA and found that the FTA would violate the human rights of the Thai people and affect the country’s sovereignty.