Interview: Brook Baker on Intellectual Property Rights, Free Trade, and Access to Medicines

Free trade agreements that threaten access to medicines

Lingering on the subject of the United States, we discuss two free trade agreements it is currently negotiating: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP). Both agreements could potentially contain investor-state dispute settlement provisions which would allow US pharmaceutical companies to sue foreign governments for pro-public health measures that promote access to medicines but reduce pharmaceutical profits. Baker believes that the fear of foreign litigation would severely compromise the willingness of states to utilize TRIPS flexibilities such as patent reform and compulsory licensing, thereby eroding the public health policy space carved out by TRIPS. “If you thought that every time you made a patent decision, as Canada did invalidating two patents on Eli Lilly products, that not only would the company complain to the highest court in the land, but they might skip that step and pick three pro-industry arbitrators from the small international pool of such lawyers and try to win there … that’s a system that could have an interim effect on governments in terms of both the decisions they make and the regulations they undertake.”

“We know, for example, that the tobacco companies taking investor-state dispute settlement procedures against plain packaging are slowing down the effort to better regulate tobacco sales. The same thing could impact regulatory decisions about whether medicines should be given marketing approval or not; it could affect price control decisions, therapeutic formulary decisions, certain patent decisions.” If foreign governments are forced to spend millions of dollars defending their pro-public health measures against pharmaceutical expectations of profit, Baker warns, they will quickly run out of funds to do so.

He hopes that public campaigning will prevent investor-state dispute settlement provisions from being included in the TPP or the TTIP. He notes growing pressure in Europe from civil society and even some governments who think that investor state dispute resolution is a bad idea. Such provisions were initially included, he explains, because some countries lacked a judicial system that allowed investors to pursue their rights, so a separate system was necessary. “It was based on this theory that some banana republic was going to seize a business and not compensate the owner, and there would be no recourse in state courts. But the TTIP is being negotiated between the EU and the US. Does anyone seriously think that there aren’t adequate court remedies in the US and Europe with respect to illegal government decisions? Of course there’s plenty of legal opportunity to challenge them. But what businesses want is an extra-judicial direct claim against the state on an indefinite standard that gives them a great deal of leverage. It’s just a huge corporate power grab.”

“What we need now,” Baker says firmly, “is a movement that keeps the heat on with respect to the right to health and the right to medicine writ large across all disease categories and all medicines.”

Baker explains that developed countries can’t, on the one hand, acknowledge health as a human right and on the other hand, endorse a system that allows corporations to complain about a thwarted expectation of profit and force governments to abandon pro-public health measures. “That’s another example of the imbalance between the rights that exist in the trade regime and human rights,” Baker asserts.

He talks passionately about the importance of the social movement, given the lack of institutional power protecting human rights. “The Global Commission on HIV and the Law had a recommendation that there be a moratorium on rich countries seeking TRIPS-plus provisions in trade agreements with developing countries. Where has it gotten us? Not very far. We don’t have an institutional lever; we don’t have any institution of power that could stop developed countries from applying pressure on developing countries. It’s crazy to have to be defending the little bit of policy space that currently exists under international law.”

The World Health Organization, Baker says, “is not playing the leadership role it should. It’s politically timid about this, partially because of the governance role that rich countries play within it and also due to the influence of the pharmaceutical industry. It’s not playing the normative role it should.” He places more importance on the social movement for global health. “What we need now,” he says firmly, “is a movement that keeps the heat on with respect to the right to health and the right to medicine writ large across all disease categories and all medicines. What I like about working on IP issues is that it doesn’t just help people living with HIV; if reform is accomplished, it could potentially help anyone with any medical condition.”

Given everything Baker has seen and how far there is to go, it would be easy for him to surrender to bitterness and pessimism. On the contrary, he is convinced that the social movement for health can achieve what political institutions have failed to do – inspire people to fight for their right to health as human beings. As long as people like Brook Baker continue to fight, the rest of us have no excuse.

Katrina Geddes received her Master of Laws (LLM) from Cambridge University in 2014, specializing in international intellectual property law. She will be commencing a Master of Public Policy at Harvard University in August 2015, focusing on global health and access to medicines. 

Photo: Northeastern University School of Law