US Trade Policy & Human Rights: Flynn Explains

Last week, several public interest groups filed acomplaint with the United Nations High Commissioner for Human Rights alleging the Obama Administration’s US trade policy violates international human rights obligations. Specifically, the groups charge the White House has used the US Trade Representative’s ‘Special 301′ status toward foreign intellectual property law standards to promote policies that restrict access to affordable medicines ( background). We spoke with Sean Flynn, who is the associate director of the Program on Information Justice and Intellectual at the Washington College of Law, about why this step was taken...

Pharmalot: So why was this complaint filed? And why now? The issues raised are not new. Flynn: Here’s the background. After the US Trade Rep’s 2009 report came out, which was the first under the Obama administration, there was a series of meetings between the administration and global health groups (such as Health Gap and Doctors Without Borders) and the objective was to push the administration to follow through on what the Obama campaign discussed – which was to change Bush administration policies on trade and promote more access to medicine.

His campaign literature and early administration policy expressed concern about access to medicines and adopted a platform to ‘break the stranglehold that a few big drug companies have on life-saving drugs.’ And he pledged support of sovereignty for nations to access low-cost generic medicines. That was interpreted and intended to be an expression to roll back Bush administration policies - using 301 and free trade agreements and other kind s of trade pressure to promote constantly escalating intellectual property laws, especially on pharmaceuticals – data exclusivity, linkage between patent status to registration approval systems, restricting a country’s freedom to define patentability criteria and restrictions on countries’ regulatory authority to control drug prices.

Pharmalot: So you’re saying what? Obama didn’t follow through? Flynn: No, the Obama administration had expressed a policy change, but its first 301 report in 2009 was essentially identical to previous Bush administration reports – there was no expressed no policy change. And so that’s when global health groups intervened and released a policy platform and pushed for a new global health centric trade agenda (here is the 2010 USTR report).

The one element of that proposal put in place in 2010 was that the Obama administration opened up the participation within the 301 process. For the first time, the US Trade Rep held an open public hearing on the 301 report. And in that hearing, the majority of those who testified were public health groups advocating for a change – essentially for Obama to implement his campaign pledge and not use the 301 program to push TRIPS-plus measures on pharmaceuticals – IP rules or regulatory restrictions not required by TRIPS agreement earlier this year (see here for background on TRIPS).

So when the US Trade Rep’s 2010 report came out, it essentially continued the same policies from 2009. It was a little better around the margins - there was better language on DOHA and a slight reduction in the number of countries cited for public health concerns, but that was about all.

Pharmalot: But why now? Why not three years ago when the Bush administration was in place? Flynn: The reason was to really try the escalate the attention within the Obama administration. There’s a sense that trade policy on IP and access to meds is still being formulated by the same bureaucrats at the USTR, but it’s not getting a significant level of political attention. Part of the goal is to escalate the political attention the issue receives. Another goal is to call attention to the 301 report, because we believe it violates not only Obama policies but also human rights…

...There’s been a series of UN reports and statements over the last five years stating that access to medicine is a human right and that IP policies can impact that right and, therefore, wealthy countries such as the US must not use their bargaining power and trade pressure to push TRIPS-plus measures on developing countries. And that’s what global health groups were asking the Obama administration to do. So this was a logical step.

Pharmalot: Still, why wasn’t this pursued when Bush was in the White House? Why is the Obama administration portrayed as the human rights violator when health groups were equally upset with Bush? It would appear Bush got a pass. Flynn: It’s not entirely true. Challenging 301 in a similar way could definitely have been done then. I think one reason was because the Bush administration wasn’t putting any time or effort into changing 301 policies. And with the Obama administration, there was a sense policy change could be achieved and these groups were frankly surprised meaningful change was expressed…The same groups were challenging Bush administration polices, but more generally in human rights terms.

Pharmalot: So what if anything can come of this? Flynn: The special rapporteur is appointed by the human rights council, but is an independent authority . And his mandate is approved by the UN General Assembly, and one of the mandates he has is to investigate complaints in the form of allegation letters, which is what we filed. And there’s a specific series of actions that are taken after a letter is filed. He corresponds with the US ambassador to the UN HR council and seeks a reply. And then the complaint and reply will be published at some point. It is essentially, a diplomatic process, not a court process. There won’t be any adjudication. And that’s because the US has not entered into any of the human rights instruments that authorized adjudication of penalies. It’s not like the World Trade Organization, where there could be trade sanctions.

Pharmalot: Do you get the sense that the Obama administration’s relations with industry are substantively different on this issue than what you saw coming from the Bush administration: Flynn: I think it’s a little unclear at this point. The facts on the ground suggest policy has not changed dramatically, but the assumption is that the reason for a lack of policy change may be because issues have not achieved the level of attention because policy leaders are not in favor of changing. But we’ll be figuring that out. I think there is a sense that there’s more policy space on these issues than in the previous administration, but not yet clear that will translate into policy change.