ALCA - FTAA - ZLEA - Contributions from Civil Society

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FTAA.soc/civ/122
January 28, 2004

FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF CIVIL SOCIETY

CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION

Name(s)	Jacquelina Brizzio/ Víctor Ricco Cristina Zurutuza, member, Executive Committee Helena Richards, Chair, OAS Liaison Committee Ana Ward Marta Ferrara, Director, Democracy Program
Organization(s)	CEDHA, Centro de Derechos Humanos y Ambiente (Human and Environmental Rights Center)– Argentina - CLADEM, Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (Latin American and Caribbean Committee for the Protection of Women’s Rights). Alianza Mesa Redonda Panamericana (Pan-American Roundtable Alliance) Asociación Conciencia (Association Awareness) IDEA, Instituto de Derecho y Economía Ambiental (Environmental Economics and Law Institute)
Country	Argentina Perú República Dominicana Argentina Paraguay
Contribution covers the following country(ies) or region(s):	Argentina, Paraguay, Peru, (Pan-American Roundtable Alliance), Dominican Republic, United States, Mexico, Honduras, Bolivia, Colombia, Chile.

FTAA ENTITIES (Please check the FTAA Entity(ies) addressed in the contribution)

Negotiating Group on Agriculture		Committee of Government Representatives on the Participation of Civil Society	X
Negotiating Group on Competition Policy		Consultative Group on Smaller Economies
Negotiating Group on Dispute Settlement		Technical Committee on Institutional Issues (general and institutional aspects of the FTAA Agreement)
Negotiation Group on Government Procurement		FTAA Process (check if the contribution is of relevance to all the entities)
Negotiating Group on Intellectual Property	X
Negotiating Group on Investment
Negotiating Group on Market Access
Negotiating Group on Services
Negotiating Group on Subsidies, Antidumping and Countervailing Rights

Third Issue Meeting on Intellectual Property and Civil Society

Participation of civil society and intellectual property rights

On the occasion of the FTAA open invitation to civil society, and taking into account the upcoming Issue Meeting on Intellectual Property, the undersigned non-governmental organizations hereby submit this contribution in order to ratify the need to ensure the ongoing participation of civil society in the very heart of the institutional architecture of the FTAA, not after the entry into force of the FTAA Agreement, but preferably during the negotiating stage, by legitimizing its presence and functioning so as to strengthen such participation in the future institutional structure of the FTAA.

Civil society participation in the institutional framework of the FTAA takes on key importance during the final stage of the negotiations. The declaration issued at the most recent Ministerial Meeting, held in Miami, provided for the concrete possibility of opening up the institutional structure of the FTAA to provide for the permanent participation of civil society (Paragraph 28).¹

As set forth in Paragraph 28, there is an interest in consolidating the creation of an institutional forum for the participation of civil society at the time the Agreement enters into force. This runs counter to the requirements of civil society, however, which has requested that its participation become part of the FTAA institutional structure during the current negotiations and prior to the entry into force of the Agreement.

If civil society participation becomes part of the FTAA institutional structure during the negotiation process itself, rather than after the Agreement’s entry into force, the guiding principles of decision-making at the international level regarding circumstances that in the long or short term will have a direct impact on the lives of the people will have been respected and applied; namely, the principles of transparency, inclusion and participation.

The type of participation that is to be built into the institutional framework of this hemispheric trade scheme must not diverge from the structure as a whole; on the contrary, it must effectively contribute to the generation of a process that infuses all aspects of the negotiations pursued within the entities that are to be set up. The participation of civil society, at both the domestic and the international level, is a human right and becomes a responsibility that the representatives of each of the peoples involved in the FTAA must know how to fulfill.

The principles of transparency and participation go hand in hand with access to information, an essential tool for making the former a reality.

In light of the above and to return to the strictly institutional aspect of the issue, it is absolutely essential that the body representing civil society include as many commissions as negotiating areas (nine to date), each having influence over the issues under discussion. In this regard, specialists in each negotiating area would be required to represent the entities or organizations comprising this body, as would mechanisms to assess the relevance of each one of them.

Intellectual property practices must include competition and antitrust rules to meet the needs of smaller economies and developing countries.

On the other hand, we understand that it would not be feasible to move beyond the terms established in the TRIPS Agreement² , since this would even further damage the economic, social and cultural rights of the people of developing countries and other small economies, as recognized by the United Nations.³

Intellectual property rights regulation must not further hinder consumers’ access to essential food and healthcare products. People must similarly have access to technology in order to progress and develop. In this respect, any new regulations that widen the gap between developed and developing countries will obviously heighten the already-existing differences and move the FTAA countries away from the goals established for trade measures at the outset of this hemispheric project for the development of trade measures, and this would, in turn, have a serious negative impact due to both the subsequent access difficulties and the cost of the products subject to such regulations.

As far as legislative technique in intellectual property is concerned, incorrect or ambiguous definitions are given for various terms; for example, in the expression “honest uses and practices”⁴ , or the definition of unfair competition, the latter being understood as “…any act to create confusion⁵, by any means, regarding products, services, etc., of a competitor…”. In this respect, more precise wording of regulations is required, otherwise, multiple interpretations will occur and this could foster abusive practices.

Trade distortions, such as technical barriers to trade, must therefore be reduced, and products that meet people’s basic needs and contribute to their economic development must be made accessible.

The protection of intellectual property rights must go hand in hand with the “when in doubt, proceed on the basis of development” maxim, which originated in and guided part of the Uruguay Round negotiations, and which is the result of the application of another principle, known in trade circles as “special and differential treatment”. This principle recognizes the different levels of development of countries and should be taken into account when applying international trade norms.⁶

We therefore find it necessary to draw attention to the following issues:

1. Given that the negotiations in this particular area are marked by heavy interests (especially those of multinational enterprises that do not take into account the interests of the consumers and users of the goods available under this intellectual property scheme), it is essential that those who participate in the definition of these matters and draw up the basic regulatory guidelines consist of both official experts and non-government advisers so that the population’s economic and social needs are not overlooked in the process.

2. Considering that civil society is the ultimate recipient of the effects of the policies agreed to and applied, its participation must be enhanced both in the negotiating phase (which is drawing to an end) and during the implementation of this project. In the case of the former, consideration needs to be given to the various viewpoints that civil society submit to the negotiating tables through the mechanisms each of the States have set up as part of a plan to increase civil society’s participation at the domestic level, and attention needs to be paid to the contributions and suggestions made through the open invitations issued by the FTAA so that these do not end up like unaddressed letters.

Present circumstances also require the immediate establishment of a permanent body to channel the participation of hemispheric civil society. This does not, however, mean rushing the creation of such an entity. The process should instead be carried out steadily, according to its needs and the basic guiding principles of transparency, freedom of information, diverse representation and the best possible participation within its structural framework. The establishment of a civil society body, therefore, needs to be contemplated not once the agreement has already entered into effect, but during the final stage of the negotiations. This would contribute to there being better control of the actions taken by the public sector and would enable people to have a more complete understanding of the negotiations as a whole when the FTAA project is implemented.

With regard to the definitive, permanent institutional structure of the future Consultative Committee on Civil Society, it is essential that those serving on this committee constitute a representative, pluralistic body of experts from a wide range of fields and the various negotiation areas, including the area of intellectual property in particular, as this is such a sensitive issue in terms of the social, health and economic needs of the people in the region. The vulnerable communities or groups that will be most affected by the FTAA decision should also be represented in a pluralistic way on this committee.

Mechanisms will have to be set up to measure the influence of this committee and to ensure it does not end up as a merely decorative institution, otherwise there will be no real participation in it.

In terms of financing, it would be reasonable for the Tripartite Committee to be responsible for the financial support of this consultative body within the FTAA, or at least to be its main financial backer. A fund needs to be set up to finance the running of the Consultative Committee on Civil Society, without influence of any kind being exerted on the core aspects of the Committee’s work.

3. Greater attention needs to be paid to the terms according to which the agreement on intellectual property is going to be defined so as to avoid ambiguities and inaccuracies that could lead to discrimination against developing countries and smaller economies.

4. In particular, efforts must focus on the conditions in which developing countries and small economies will, under the intellectual property regulations, have to tackle the differences in access to technology and items that are essential for preserving health and human life. The pursuit of economic growth with equity is imperative, and the social development of the peoples of the Americas must not be overlooked in the process.

5. It is important for the Hemispheric Agenda to be totally coherent, and the consensus reached on trade issues within the FTAA must therefore coincide with the objectives established in the Summits of the Americas and the Inter-American Democratic Charter and place respect for human rights above all commercial interests.

- CEDHA, Centro de Derechos Humanos y Ambiente (Human and Environmental Rights Center)– Argentina -
- Alianza de Mesas Redondas Panamericanas (Alliance of Panamerican Roundtables)
- Asociación Conciencia (Association Awareness) - Argentina.
- CLADEM, Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (Latin American and Caribbean Committee for the Protection of Women’s Rights).
- IDEA, Instituto de Derecho y Economía Ambiental (Environmental Economics and Law Institute)- Paraguay

¹ Paragraph 28 of the Miami Declaration states: “We express our interest in creating a civil society consultative committee within the institutional framework of the FTAA upon the Agreement’s entry into force. Such a committee could contribute to transparency and the participation of civil society on an on-going basis as the FTAA is being implemented. We instruct the Committee on Government Representatives on the Participation of Civil Society, in coordination with the TCI, to continue to study the issue and make recommendations to the TNC concerning it. We ask the TNC to review these recommendations and make a proposal concerning this matter for our future consideration.”

² Although we understand that the tendency is to deepen the WTO agreement in an attempt to obtain a “plus” in each of the FTAA negotiating themes, we also recognize that, given the above, it would not be appropriate to continue in this vein.

³ See http://www.docip.org/espagnol/update_sp/up_sp_36.html#rdip Resolution 2000/7 of the United Nations Sub-Commission on the Promotion and Protection of Human Rights on intellectual property and human rights. The same resolution also concludes: “…since the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food and the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.”

⁴ The question is: what should be understood by honest uses and practices. Second bracketed option of [Subsection B.2.k. Unfair competition]. [Article 1. Unfair competition].

⁵ In this case, the term “confusion” has an extremely subjective connotation. [Subsection B.2.k. Unfair competition]. [Article 1. Unfair competition] Point 1.2.a).

⁶ For example, the regulation of second-use patents—not recognized by the WTO as they fail to meet two of the three requirements imposed by universal patent law, which are: novelty and inventive level—contains an inherent obstacle, since this can mean the indefinite patenting of goods, which hampers access conditions and negatively impacts economic and social well-being, and contravenes the principles governing patent law. Note that even in the Third Draft, the paragraph addressing this issue is bracketed, which shows that an agreement has still not been reached on the topic. Subsection B.2.e) [Invention] patents. Article 1. Patentable material. 1.5.j).


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