Global Civil Society Rises Up Over FTAs
Online Publication Date: 17 February 2012
(Kuala Lumpur, 17 Feb (Fauwaz Abdul Aziz/Third World Network) – 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.
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 cancer, heart disease, mental illness and
In Malaysia on February 8, 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
In India on February 10 – the day the EU and Indian
governments held a summit in the country's capital of New Delhi – a 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 Médecins Sans Frontières (MSF), was reported as
“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 February 10 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 the 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
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 February 7 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
- 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
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
“It is vital therefore that further barriers are not created
that threaten the supply of affordable generic medicines from India,” said
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
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
- 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 February 4, MTUC president Khalid Atan called for the
800,000-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
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
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
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% 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
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
If the Commission agree to carrying out the human rights
impact assessment, they would be the second ASEAN government to do so after
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 Thai people and affect the