Will Trade Negotiators Ensure Access to Drugs for the Poor in Developing Countries?

The New York Times of 28 July, 2015, reports that eleven key pro-trade Democrats in the US House of Representatives are threatening to withdraw their support for the Trans-Pacific Partnership (TPP) that is being negotiated if the agreement offers to pharmaceutical companies the concessions that they seek. The Representatives voiced their concern in a letter of 23 July, 2015. What is significant in this letter is the Representatives’ worry not about their own domestic constituencies but about the impact on others: “A TPP that inhibits a balanced approach could unreasonably delay the timely and affordable access to medicines in certain TPP countries.”

The on-going negotiations on the TPP between the US and eleven other Pacific Rim states, as well as on the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU, demonstrate the adverse consequences of excluding affected stakeholders. The two regional efforts, designed to establish what President Obama called “the rules for the global economy,” will have significant indirect impact on all those countries who do not take part in them (see here).

Specifically, advocacy groups such as Médecins sans Frontières and Oxfam have warned that the agreements would impose obligations on developing countries that go far beyond any existing trade agreement and impede the access to life saving drugs for millions of people in those countries (here).

The negotiation strategy of the TPP and TTIP and the rules that are negotiated raise two questions from the perspective of third parties:

First are questions regarding the negotiations phase: To what extent will and should the TPP/TTIP negotiators involve the representative of third countries in their negotiations over the text of the agreements, or otherwise take their interests into account?

Second are questions regarding the contents of the agreements: Will the new rules take third parties’ interests into account? Will they provide third parties standing to voice their concerns in the implementation phases of the agreements (e.g., at the dispute settlement phase or during deliberations over the interpretation of the agreements)?

The answer to both types of question is, thus far at least, resoundingly negative. Until recent WikiLeaks revelations, the negotiations took place behind hermetically sealed doors. Draft texts were to remain confidential for years after the agreements would be signed. And if we judge the outcome of one text that the EU Commission already gave its consent to, the Canada-European Union: Comprehensive Economic and Trade Agreement (CETA) the answer to the standing question is also negative: the dispute resolution mechanism of CETA allows for amicus briefs by “non-governmental persons,” but only from among those “established in a Party,” namely, in the case of CETA, only in Canada or in the EU.

It remains to be seen whether more conscientious representatives will join the eleven House Democrats and insist on balanced rules that take others’ interests into account.

This evolving story about the drafting and contents of both the TPP and the TTIP highlights the need to involve the “global others” when drafting rules for the global economy. Ultimately, as the Ebola Interim Assessment Panel of the World Health Organization recently stated, “states have a responsibility to act as global citizens.”

More on the TPP and the access to drugs in developing countries:

Amy Kapczynski, The Trans-Pacific Partnership — Is It Bad for Your Health?, The New England Journal of Medicine (June 10, 2015).

Sean M. Flynn, Brook Baker, Margot Kaminski, and Jimmy Koo, The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement, 28 AM. U. INT’L L. REV. 105 (2012).