CHAPTER 1

Trading Health for Wealth

Edgar's smile was not a polite nice-to-meet you smirk but one ofthose grins that first ignited in his coffee-colored eyes and then radiated,broad and beautiful, across his face. He settled into his plasticchair and leaned forward, friendly, engaged, eager to hear the questionswe'd come to ask him. Among an organization of strikingly optimisticpeople, Edgar seemed particularly so. Yet, cast against his unassailablygenerous spirit, the one question he asked us was devastating: "Why wouldyour Congress make it harder for me to get my medicine?"

My students and I met Edgar in the summer of 2004, in the officesof a Guatemalan HIV+ organization called Gente Positiva. At that time,CAFTA—the U.S.-Central America Free Trade Agreement—was awaitingratification in all the member countries. The agreement was the first majorextension of the NAFTA (North American Free Trade Agreement) model,hailed as a stepping-stone to an eventual Free Trade Area of the Americas;its announcement had touched off battles around labor rights, environmentalprotection, and threats to peasant agriculture. In addition, criticshad begun to raise concerns about the agreement's chapter 15, whichgoverned intellectual property (IP) rights. In Guatemala in particular, acoalition of public health, human rights, and alter-globalization activistshad come together to advocate against the IP provisions in CAFTA, whichthey argued would curtail access to medicines by limiting the availabilityof low-cost generics. On the day the Guatemalan Congress ratified theagreement, some took to the streets wearing jerseys emblazoned with theslogan, "My life is not for sale."

This was a new issue for Central American human rights advocates.Indeed, CAFTA itself was something of a turning point for the movement,marking a new era of engagement with global economic structures.

Guatemala, like some other countries of the region, had only recentlyemerged from a prolonged armed conflict that had inflicted deep and painfulwounds on the social fabric; a UN Truth Commission had declaredin 1999 that the atrocities committed in the context of the thirty-six-yearwar constituted a genocide against the indigenous Maya. When I beganresearch on human rights issues in Guatemala in the mid-1990s, the fieldwas dominated by discussions of postwar justice and reconciliation. Forensicanthropologists spearheaded the scientific exhumations of massgraves littered across the countryside; lawyers undertook the careful workof knitting together testimonies with legal tools, seeking accountabilityfor wartime atrocities; the UN Mission in Guatemala, tasked with verifyingcompliance with the Peace Accords, issued periodic reports on thestatus of implementation efforts; human rights organizations documentedthreats against witnesses in court cases and called for truth telling aboutpast violence. Everywhere, the focus was on issues related to state violence.

But by 2004, when we met Edgar, things had shifted perceptibly. Donorsupport for the various legal accountability efforts had waned, perhaps inresponse to disheartening outcomes—even today, the military leaders responsiblefor crimes against humanity have largely eluded justice—or perhapsin reflection of a broader reframing of global human rights concernsin the wake of 9/11. The UN Mission had left the country. Various forms ofinternational assistance were still present, but they tended increasingly toplace priority on alleviating the region's enduring poverty rather than promotingpostwar justice. The genocide had mostly slipped from the headlines.In this context, beginning in 2003, behind closed doors and withoutany involvement from civil society organizations, the governments of theUnited States and various Central American countries—Costa Rica, ElSalvador, Guatemala, Honduras, and Nicaragua—had hammered out acomprehensive agreement that established new rules and procedures fortrade relations.

If some in the human rights community had until then consideredtrade law a technical province of administrative procedures largely unrelatedto its core concerns with justice and accountability, such assumptionsfaded fast when CAFTA's content was unveiled in 2004. Amid thelayers of legalese were new rules for doing business across borders; newlimits on what national laws could regulate, promote, or prohibit vis-à-visthe conduct of private industry; new institutions for adjudicating disputesbetween corporations and governments; and new ways of envisioning thesocial contract.

Given the history of Central America, it was not difficult to imaginethat these ways of reconfiguring corporate relationships with states in aninterdependent global arena could have human rights implications. Thiswas nowhere clearer than in Guatemala, once the proverbial "bananarepublic" where an attempt to nationalize lands held by a U.S. corporation—UnitedFruit, now known as Chiquita—had triggered the ouster ofdemocratically elected President Jacobo Arbenz in a 1954 coup backed bythe CIA (Central Intelligence Agency). The violence that followed the couprapidly devolved into civil war, as a series of U.S.-backed dictators tookturns battling Marxist guerrillas and eventually waging genocide againstthe country's indigenous majority. So, some seven years after the signingof the country's Peace Accords, when the text of CAFTA was made public,those paying attention immediately recognized what was at stake andscrambled to organize in response.

But it was an uphill battle: Prolonged civil wars had turned societiesinward, had polarized them along ideological lines, and had decimatedcivic engagement. The issues in the agreement were complex and cloakedin language that was difficult to understand. And poverty, the lack of education,and underemployment already had the majority of the region'spopulation locked in a daily struggle for subsistence, in which informingthemselves on the finer points of trade law, let alone manning the barricades,seemed a tall order. While progressive unions, peasant groups,and—to a lesser extent—environmental organizations rallied their basesto oppose relevant chapters in the agreement, there was no preexistingCentral American advocacy group dealing with intellectual property. Theissue was brand new.

During the CAFTA ratification process, I sought in my own limitedway to contribute a human rights voice to the intellectual property discussionthrough opinion pieces, meetings with congresspeople, and generaladvocacy. In one of those discussions, when my students and I sharedour work with our congressman before a research trip to Guatemala, headvised us to meet with people who'd be affected by CAFTA's IP chapterwhile there and to note their stories, even take their pictures so as tolater be able to personify the harm this legislation would bring. Followinghis advice, we went to the offices of Gente Positiva to meet some of theHIV+ patients who the organization was concerned might lose access toantiretroviral drugs under the terms of the agreement's more restrictiveintellectual property laws. Edgar was one of several HIV+ patients kindenough to share his story with us that July day.

I always tell my students to be mindful of the ethics of interviewing andto give the interviewee a chance to turn the tables and pose questions, too;it's only fair, after all, if we are asking them to open their lives to us, thatwe might be expected to do the same in return. So after an engaging, pleasantconversation with Edgar in which we mainly discussed his experiencesliving with HIV and his challenges obtaining the antiretroviral drugs heneeded to stay alive, we asked him if he had any questions for us.

"Yes," he said, smiling, as he had throughout our time together. Hepaused slightly to gather his thoughts. "Why would your Congress make itharder for me to get my medicine?"

This was the question that I found devastating. I stammered somethingabout the agreement's complexity and voters' ignorance, but a real answerwould have had something to do with the agreement's unstated premisethat certain lives were expendable, and I didn't have the courage to say that.He smiled—again—and graciously let it go. But in that moment I made asilent commitment to share his story and that of other Central Americanswhose access to drugs was challenged by U.S. trade policy.

Why Intellectual Property Matters

The intellectual property debate should matter to us, I believe, on at leasttwo levels. First and most directly, IP affects who gets access to medicine—including,in cases like Edgar's, medicine that marks the difference between life and death. If we care about human rights, we need to understandhow these policies work and the impacts they have on real people's lives.Those of us who are Americans have a particular duty to do so, as thesepolicies are promoted in our name, using our tax dollars.

Secondly, however, intellectual property should also matter on anotherlevel to those of us concerned with human rights. We know human rightstactics can work—within limits—against the violation of civil and politicalrights by authoritarian governments. Amnesty International cut itsteeth contesting the torture and imprisonment of political opponents inthe 1970s Southern Cone; Human Rights Watch began as Helsinki Watch,scrutinizing and denouncing abuses behind the Iron Curtain. Decadeslater, a vast and vibrant field of interdisciplinary scholarship in humanrights has examined when and how such tactics have proved effective atreining in repression through appeals to international norms.

Yet today's human rights headlines increasingly call attention to newchallenges. While the iconic figure in decades past was the prisoner of conscience,the courageous dissident imprisoned for daring to speak his mind,today's struggles feature new actors: indigenous people opposing the constructionof dams on their ancestral lands; factory workers rallying againstthe "cut and run" practices of transnational capital; AIDS patients demandingaffordable drugs from an industry whose pricing places the pillsbeyond their grasp. In these and other cases, the international legal orderis not always an antidote to abuses; some rights violations stem from transnationalstructures, and some violators even justify their actions by citinginternational trade law. Particularly as regards social and economic rights,sometimes the challenge requires empowering a reticent state rather thanrestraining a repressive one. In this context, how potent are the conceptsand tools of human rights at prompting counterhegemonic transformations?Are transnational human rights capable of challenging global economicdictates, or do they merely provide a fig leaf for contemporary formsof exploitation?

I believe the struggles over intellectual property and access provide auniquely propitious site for examining this question. For although thereare numerous points of friction between human rights and internationalcommercial law, IP represents the site of clearest contradiction betweenthese two ways of ordering our world. The way in which this conflict inperspectives is resolved, then, bears broad relevance to a host of contemporarystruggles over rights, justice, and the role of the market in social life.

Why Central America Matters

Central America makes for a particularly apt site from which to examinethe frictions between intellectual property and human rights, for threereasons. First, CAFTA represents the largest trade agreement to date toinclude "TRIPS-plus" IP provisions, a term that refers to standards exceedingthose established under TRIPS (the 1994 Agreement on Trade-RelatedAspects of Intellectual Property Rights, the global agreement establishinga single universal set of IP standards for all WTO [World Trade Organization]member nations). What's more, the IP standards in CAFTA are, onbalance, more demanding than those contained in bilateral trade agreementsthat preceded it and in agreements that followed it. This means that,at this point, CAFTA's standards represent the global high-water mark inintellectual property protection.

Second, the right to health enjoys a relatively high degree of constitutionalprotection in the countries of Central America. A recent studyfound that 90 percent of court cases worldwide in which the right to healthwas invoked to seek access to medications came from Central and SouthAmerica, suggesting that those seeking to advance legislative or judicialframeworks that prioritize to the right to health might enjoy some advantagesin this region (Hogerzeil et al. 2006, 305). In this sense, the CAFTAcountries find themselves situated on the front lines of this debate; howthey navigate these competing pressures may contain lessons for otherparts of the world.

And third, it is important to examine the impact of intellectual propertypolicy in a diversity of national and regional settings. While the yearssince TRIPS have seen important public health victories, not all of thesecan be broadly generalized; the attention they have generated may yieldmistaken assumptions about what policy options are possible. For example,the bold stance of Brazil, a country that has repeatedly granted compulsorylicenses to allow the domestic production of generics, is made possible bythe country's status as an economic powerhouse and the considerable capacityof its domestic pharmaceutical sector—advantages most developingcountries lack (Shadlen 2009). The high-profile campaign of South AfricanHIV+ patients and their transnational allies, similarly, was successful inforcing the United States to withdraw its suit against their government forallowing the production of generic antiretrovirals, but not all countries ordiseases command such sympathy in the court of public opinion (or, forthat matter, in any court). And while the coalition building among GlobalSouth countries at the WTO made possible the landmark Doha declaration,which lays out key flexibilities in IP rules that states can invoke toprotect public health, in recent years the most aggressive forms of IP lawmakinghave taken the form of bilateral trade agreements struck betweenthe United States or EU (European Union) and much less powerful nations.The negotiating climate in such deals makes it much more difficultfor weaker countries to secure human rights concessions. For all of thesereasons, then, it is important to investigate the implications of intellectualproperty policy for the right to health in relatively smaller nations, whichconfront strong IP pressures yet may not enjoy the same policy making (orpolitics making) possibilities as trailblazers like Thailand and Brazil.

Research Design

When I embarked on this research project, I was driven by two relatedresearch questions. The first was an empirical one: I wanted to know whatCAFTA's impact would be in Central America, and I was concerned that itseemed there was little interest in rigorous research on this point. In brief,I thought that by conducting some of this research myself I might actuallymake a difference. And second, I was interested in a broader theoreticalquestion: Will the tools of human rights be effective against threats arisingfrom the global economic order? Or, to put it differently, even if we coulddetermine with scientific precision what CAFTA's impact on health wouldbe, could we really do anything about it?

I began my work by tackling the empirical heavy lifting. I started outby working to predict the agreement's impact by analyzing its implementationlegislation across all six CAFTA countries, including the DominicanRepublic. (Although most commonly referred to as CAFTA, the full nameof the agreement is the U.S.-Dominican Republic-Central America FreeTrade Agreement; it is occasionally referred to as DR-CAFTA because theDominican Republic was rolled into the treaty following its negotiationin Central America.) My colleague Alejandro Cerón and I found that, despiteresponding to a uniform text, the process of its implementation wasquite varied across member countries (Cerón and Godoy 2009; Godoy andCerón 2011).

These findings left me both deeply concerned that so little attentionwas being paid to this issue in the Central American context and troubledthat so few Central American health advocates were immersed in theseissues. In response to this perceived need, I sought and obtained supportfrom the Ford Foundation to carry out a range of activities on intellectualproperty and health rights with Central American public health researchers,aiming to build capacity in the region for engagement with this highlytechnical issue. Jointly with Alejandro Cerón, I spearheaded the creationof a network of public health researchers from across Central America,called the Central American Network on Intellectual Property and Accessto Medicines (or Red CEPIAM, by its initials in Spanish) to monitor IP'seffects in the context of national and international commitments to theright to health. The participating researchers, who ranked among the region'sleading figures in public health policy, conducted studies of IP implementationin their countries and shared their findings with civil society,government, and intragovernmental groups like the Pan-American HealthOrganization. Discussions with these researchers and our counterpartsin Colombia—where network meetings were held—provided me invaluableperspective on how this global issue connected to Central American realities.