EEN
NG
GLLIISSH
H IIII
2
EEN
NG
GLLIISSH
H IIII
I.
Introduction
The Central American Free Trade Agreement (CAFTA) is a free trade agreement currently being
negotiated between the United States and the Central American countries of Guatemala, El Salvador,
Honduras, Nicaragua and Costa Rica.
The goal of the negotiations is the creation of a free trade zone, similar to the North American Free
Trade Agreement (NAFTA) which currently encompasses the US, Canada, and Mexico. CAFTA is also
seen as a stepping stone towards the Free Trade Area of the Americas (FTAA), another, more
ambitious free trade agreement which would encompass South American and Caribbean nations as
well.
3
EEN
NG
GLLIISSH
H IIII
I.
Intellectual Property and Privatization: As is the norm in most modern trade
agreements, the Central America-United States Free Trade Agreement (CAFTA) contains
a chapter on Intellectual Property Rights that further regulates and enhances current IP
legislation. Some of the provisions have stirred up controversy and generated healthy
debate in Costa Rica. The three main areas of contention are the adjustment of patent
terms, the exclusive use of undisclosed data, and the accession to the UPOV Convention
(International Convention for the Protection of New Varieties of Plants).
For many people this is the main benefit in the CAFTA with the United States intellectual property and
privatization.
Why happens that? Because, it would imply the permanent respect to the rights of intellectual property
and privatization in this country.
More about that:
-
The government don´t accept to patent pharmaceutical products, when being identified new
uses for the same ones.
-
It was accepted an extension of the term, whenever this late its registration for more than five
years.
-
The Foment law, now protect the industrial sector indefinitely.
-
It will protect for five years the pharmaceutical products, and teen years the chemicals
products.
-
It is allowed the exclusion of the patentability of therapeutically methods or of diagnosis.
-
Our legislation allows to patent new varieties of plants and animals whenever these be a little
innovative, whenever this be inside of the state of the technique and that it has industrial use.
-
The agreement confirms the possibility of to patents plants.
-
It is not prohibited the production, neither be recommended the generic products.
-
The term of protection of the rights of author was postponed of 50 at 70 years.
-
Was accepted to make reasonable efforts to achieve:
To patent the plants in Salvador (The law already allows it) or to ratify the agreement of UPOV,
(protection of new vegetable varieties).
Protocol to the arrangement of Madrid concerning to the registration international of the marks. It was
protected the commitment to ratify the following agreements.
-
Agreement of Brussels about protection of the signs of satellites, signs that contains programs.
-
Agreement of cooperation in patents PCT.
-
Agreement about right of marks.
4
EEN
NG
GLLIISSH
H IIII
1. Adjustment of the Patent Term
In all cases, the term of patent protection is for 20 years from the date of filing. However, the exclusive
right cannot be exercised until the patent is granted. Since the process for registering the patent
normally lasts from 1 to 3 years, the patent owner is not able to enjoy the full term of protection. The
above is especially true in the case of pharmaceuticals and agrochemicals. In addition to the regular
delays in the registration of a patent, commercialization of these inventions is subject to previous
approval by the respective health agencies in each country.
2. Exclusive Use of Undisclosed Data
The second area of contention involves the exclusive use of undisclosed data. Both the Costa Rican
Trade Secrets Law (Law No. 7975) and the TRIPS Agreement (Trade-Related Aspects of Intellectual
Property Rights) provide for the exclusive right to use certain previously undisclosed data. This data is
generated during a product's invention and testing stages and is necessary in order to obtain health
permits for pharmaceutical and agrochemical products. The clause of exclusivity prevents others from
also using such data to obtain a health permit for their own goods. Neither Costa Rican law nor the
TRIPS Agreement establishes a time limit for the exclusive use of this data, which may therefore be
exercised indefinitely.
3. New Plant Varieties Protection
The third area of contention involves the protection of new plant varieties. Although CAFTA does not
provide substantive regulations for the protection of plant varieties, it does require countries to adhere
to the 1991 UPOV Convention (the International Convention for the Protection of New Varieties of
Plants). In the case of Costa Rica said adherence must be completed by June 2007.
Adherence to UPOV would fill an importation gap in Costa Rican law, which currently does not give
sufficient protection to plant breeders despite its being clearly established in the TRIPS agreement and
in our country's Patent Law. While seeds and plant varieties are easy to reproduce, local and foreign
breeders are in dire need of exclusivity rights similar to those provided by the UPOV Convention.
How the peasants are affected?
MECHANISMS OF APPROPRIATION, OF THE BIOCHEMICAL AND GENETIC PATRIMONY:
The Central American countries have been gifted for the nature with a big biodiversity, increased and
protected for the work of indigenous and peasants, the extensive cattle raising and the agriculture, only
is possible with the chemical agriculture packages, propitiated for the green revolution, contributed to
deteriorate the biological diversity to the equal deteriorate with mutual effects, the cultural diversity.
The CAFTA would imply one of the most aggressive political public of the last years, the amplification
of the rights of the intellectual property on forms of life contained in the item 15.
5
EEN
NG
GLLIISSH
H IIII
II.
The agriculture
Costa Rican agriculture would suffer without CAFTA
With the CATA the farmer’s don´t have to pay tariffs for the products that they export:
At least 5. 000 families of Costa Rican farmers would have suffered negative consequences, if it had
not been ratified in this country the Central American Free Trade Agreement.
It is urgent that the Costa Ricans know the harmful thing that it would be for the country the non
approval of the commercial agreement, because thousands of families would stay without sustenance
and our economy would be seen in problems.
The ministry develops in the zone of Oreamuno an analysis, to about 35 kilometers, to the northeast of
the capital, in a zone known for its horticultural activities and vegetables agriculture.
The 74 percent of this agriculture go to the American market and if the agreement isn´t approved,
those farmers would have to pay a tariff of 17 percent being outside of the market.
Others affected would be those that are devoted to sow and to export carrot and cabbage with vents
toward Florida that arrive to 50. 000 weekly dollars.
With the commercial agreement the revenues would ascend until the 250. 000 dollars, but of not
having the agreement, they would be fined with a tariff of 9 percent.
The vice minister indicated that in Oreamuno it is processed for week more of 120 vegetables tons,
and they wait with the agreement the quantity is increased of 150 tons or more.
If we approve the agreement, the sector agro industrial is in capacity to develop the annual rates above
20 percent, which would generate employment for approximately 500 Costa Rican in the first two
years.
6
EEN
NG
GLLIISSH
H IIII
The agricultural sector of C.R is very fortunate.
C.R exports to the USA more than 1.400 agricultural products, among those that are melon, pineapple,
watermelon, mango, papaya, banana, mini- vegetables, chili, tomato, cassava, yam, tiqizque, chayote,
span, coffee, jellies, among many more.
C.R exports to the USA a value almost three times bigger than what it cares of that country in
agricultural products.
The CAFTA is important for the sector because it assures that all the exports of those products don’t
pay again taxes.
The products that don’t take place or we are competitive they enter in free trade and the agricultural
sector that require more time to get ready for the competition with USA they will have terms for the tax
elimination.
1- 15 years: meat, oil, vegetables, beans; 17 years: the chicken and 20 years: for milk and rice.
The potato and the onion were excluded of the CAFTA, that is to say, they won’t be affected by
tariff deductible.
2- The CAFTA offers the possibility to apply an agricultural special safeguard to protect to the
sensitive productive sectors that are affected by the increase in the imports.
The great majority of the products that USA subsidizes, C.R doesn’t produce them and rather it can
care them cheaper thanks to this subsidies, (wheat, cotton, trenches, barley, yellow corn, peanut,
sorghum, soya and other oleaginous ones)
1- Only in the case of the rice, the subsidy that USA grants to its producers it could affect to
the Costa Ricans producer, although today in day neither as this way, because the national
producer benefits with the American rice is cheaper.
2- The CAFTA has to elimination the tax to the trade of the rice a 20 years old period
3- Also, if in that moment the subsidies persist, the countries will be able to decide to continue
the mechanism of established safeguard in the treaty.
For all these reasons, the agricultural sector is one of those more beneficiaries with the CAFTA and the
negotiated terms guarantee a fair treatment for the farmers.
7
EEN
NG
GLLIISSH
H IIII
III.
Bones, organs and tissues as mercantile
It has published in many means of communication comments about many doctors that oppose of
CAFTA, with the opinion that with the CAFTA, it will be allowed to bring at the country tissues, bones
and organs for implants or transplants and also, should be approve the agreement of Budapest. That it
recognizes the deposit of microorganisms for the procedures of patent which they qualify like an
immoral practice in the medicine.
Clearly, the news of those topics has the intention of confusing the people and to create new myths
around the CAFTA, later to that the “Constitutional Room” have decide that the CAFTA is
constitutional.
About the first topic is importation to express that with or without the CAFTA the country import to the
exterior, numerous tissues, organs and bones, those are indispensable to be able to assist medical
emergencies of patients that require of those to save lives and to get better their conditions of health.
The imports that are made at the moment, those which come mainly of the United States, include for
example horny tissues for the eyes and bones.
Well, the transplant of organs is something common in the modern medicine and you can see for
example in cases of burnt children that require skin implants, in people that have required a liver
transplant.
Of this way I should to mention that according to the information of CCSS, in this moment there are
sixteen people in wait list to receive liver transplants, and for month is included in this list of two or
three persons. Also is importation mention that in this year have died three persons that were in wait of
transplant.
Of course, it exist specific laws to regulate and to control the transplant and the importation and
exportation of bones, which are including in “The general law of healthy” (Law 5395), such as in the
law that authorizes the transplants of bones and humans anatomic materials, and its law (Law 7409).
The opposite doctors at the CAFTA argue that in the letter that Marco Vinicio Ruiz, (Ministro de
Comercio Exterior), sent to the Dr. Cabezas, was indicate that the item 30019010, corresponds to the
bones and humans tissues for implants and transplants and that it counts with a tariff classification in
the harmonized system.
This is totally normal, and furthermore this classification is included in the list of the OMC, and all the
list of the Free Trade Agreements that CR has subscribed.
However has been published false information to confuse people making believe that this is not ethical,
and they don't clear up that with or without CAFTA, any import of this type: human's organs, tissues,
and bones should of the same way go to circulate in the control customs officer, and to pay the import
taxes, if this had, although it is necessary to clarify that since 1985 the tariff for this type of importation
is 0%.
It is important too, clear up that Costa Rican country has not reported exportation of organs, bones or
tissues in the last year and to be a little country and doesn´t have the technology that possess other
more developed countries, for this reason is better to import this kind of materials, if it is we want to
assist the medical urgencies of people that require a transplant or implant of some organ or human
tissue.
8
EEN
NG
GLLIISSH
H IIII
In the same way of the topic of the weapons, the people that are opposes of the CAFTA want to create
another absurd myth, which however frighten the people, mainly the humble people.
“The Constitutional Room” when analyzing the constitutionality of CAFTA, it pointed out in relation of
the program of tariff:
"The idea of this list is to include all the imaginable products and to constitute, in a nomenclature
international multi-purpose of mercantile.
However in the commercial negotiations, this not mean that the list in question for themselves, force to
the Free Trade of this mercantile above the national legislation, if it not, it is foreseen expressly in the
agreement that is negotiating. And it is not enough to give an extreme example as that of the cocaine
and the grass. To indicate that in spite of being in the list of tariff reduction of Costa Rica, it doesn´t
mean that our country have to allow the free trade of those products, that which evidently would not
accept countries that are part of the agreement”
Of the above-mentioned it is clear that the CAFTA, of anyway change the form like at the moment is
regulated the transplant and the implants of organs, bones and human tissues, those which are
necessary for assist medical necessities that happens in the country. It is totally false that with the
CAFTA, it is allowed to market this kind of products, and it is absolutely irresponsible to insinuate or to
think that the organs will be hanging in hooks in the groceries like it has been mentioned.
On the other hand, in relation with the Agreement of Budapest, is important clear up that this
Agreement doesn´t force to the country to patent microorganisms neither, it defines the matter that the
country owes or it doesn't should to patent.
It not even establishes the obligation to the country, of to demand the deposit of microorganisms like
requirement inside the procedure of registration of patents.
This agreement which has been ratified for 67 countries only recognizes certain collections of
microorganisms certified such as international authorities of deposit, alerting that the countries that
allow or require the deposit of microorganisms for the registration of patents should recognize, for
those effects, the deposit made in the face of any international authority of deposit.
All the conditions and requirements established in the national legislation of each country for the exam
and grant of patents continue being applied, and the agreement doesn´t come to supplant those,
neither to modify, in no way.
Also is important to clarify that “The Agreement of Budapest” doesn't create any international
registration of patents neither forces to the country to recognize neither to accept patents granted in
other countries.
Because that constitutes a sovereign ability of each country that it isn´t affected con this agreement.
On the other hand, it is necessary to clarify that in the Agreement of Budapest doesn't define what it
should be understood by "microorganism", neither settles down, which microorganism are patentable
and which not.
These regulations correspond to make, in the internal legislation of each country and the agreement
doesn't impedes to the country to modify, to clarify or to limit its internal legislation about patentable
things, and the definition of microorganism.
For the above-mentioned I believe that is completely irresponsible that It is published comments of this
kind, that in nothing contribute to the formation of an objective approach about the CAFTA, creating an
absolutely groundless fear and with clear intention of managing unscrupulously the human feelings,
when they are questioning the necessities of people that require of a donation to continue living.
9
EEN
NG
GLLIISSH
H IIII
III.
Water privatization
Free Trade, Water Privatization and the IFIs
The IDB, the World Bank and the International Monetary Fund are the largest purveyors of water
privatization worldwide. These international financial institutions, or IFIs, primarily pitch their
privatization plans through "structural adjustment" loans, where borrower nations promise to reform
sections of their economies as a condition for receiving loan money.
In World Bank vernacular, "hydro-sector reform" is a euphemism for privatization and the "structural
adjustment" of laws governing water management and usage. Behind the charitable guise of providing
water to the poor, the majority of the water projects are implementing changes that shift control of
water management and propriety over water itself from democratic forums (like city councils and state
legislatures) to corporate board rooms.
The consumer watchdog group Public Citizen reports that the IDB and World Bank together administer
about 133 different water and sewage-related projects, funded to the tune of $9.7 billion. The majority
of these projects are in Africa and Latin America, and most of them include some type of "hydro-sector
reform."
The World Bank often makes the decentralization of national water administrations (such as ANDA)
and the implementation of concessions to private corporations mandatory reforms included under the
conditions of its projects and loans.
Another common reform is known as "cost recovery," whereby borrower nations agree to operate
national or municipal water companies at a profit. Until "cost recovery" was implemented, most national
governments subsidized water delivery since access to water has been traditionally viewed as a right,
not a privilege. However, as structural adjustment forces governments to abandon the universal access
doctrine, poor folks are stuck with higher water bills and forced to make excruciating trade-offs
between water, food, medicine or school fees.
CAFTA creates a new legal framework for the sale of water and other public services, although it
allows countries to "opt-out" of the public services of their choosing. (Nicaragua and Honduras have
exempted water from CAFTA's rules.)
In El Salvador, President Tony Saca chose no service exemptions, and thus opened the entire water
sector to competition by international corporations. Under CAFTA, multi-national water companies
must be given "national treatment"—though there is no obligation for corporations to sell water
nationally. If a new concessions law is passed, as Saca and his friends at the IDB wish, multi-national
water corporations could start hawking over El Salvador's lavish supply with an eye toward more
lucrative consumer markets.
According to Alejandra Castillo, with the Committee in Solidarity with the People of El Salvador
(CISPES), water privatization combined with CAFTA's new rules "will leave poor Salvadorans high and
dry."
CAFTA rules guarantee that a country cannot voluntarily reduce the export level of a good or service
provided. Therefore, if El Salvador becomes a water exporter, CAFTA, not national policy makers, will
decide whether water will flow in El Salvador's homes or be sold internationally.
CAFTA also gives corporations the right to sue national and local governments if a company feels that
its "right to profit" has been infringed. Laws ensuring that local populations be prioritized in the
provisioning of water, as well as environmental laws guaranteeing water quality could be viewed as
"barriers to trade." In the case of NAFTA, the trade treaty CAFTA was modeled after, the threat of
corporate lawsuits has often been enough to deter or overturn environmental legislation.
10
EEN
NG
GLLIISSH
H IIII
"If we take the electricity sector and telecommunications as guides, privatization has meant higher
rates, lower quality, less access, and less sovereign control over our public services," said Castillo.
"CAFTA multiplies those effects, since it brings in the international heavy hitters and the rules they play
by."
One of the main concerns that diverse sectors have as for it negotiated by Costa Rica as resources of
the water, is the elimination of tariffs for the export of water toward United States; fact that would be
seen from the point of view of any other commercial activity like an opportunity and an important
achievement; but that from the point of view of the protection of the water resources constitutes a
serious threat, it is of to be expected that this commercial incentive will intensify the massive extraction
of water of our aquifers for its export, without the country can take the necessary measures so that this
activity doesn't affect the real readiness of the resource seriously.
The country lacks a Law of water Resources that regulates this commercial activity in efficient form and
that it endows of the instruments and control mechanisms, prevention, and sanction to the authorities
of the Ministry of Environment and Energy (MINAE), that are required for integrated administration,
fair, equal and sustainable of the water.
All we know that our country has been blessed in a lot of areas, but specially what to water concern.
There are rivers every where; its true that we don’t have any lake but there are some lagoons and on
the north border side you can find a bunch of big rivers such as Sarapiquí, San Carlos and San Juan
among others; and close to Panama there are also great rivers such as térraba, sixaola and others.
Costa Rica is situated between two oceans: Caribbean and Pacific, and a big percent of its areas have
been designated for conservation and due to its climate biologist have found the 5% of biodiversity of
the world.
However the world change every day and new rules are required the worlds near 7000 millions
habitants and all of them need water to survive. How to get it is the question, how much people have to
pay we don’t know.
The CAFTA presents a real deal for the water and open the possibility to investors in order to gain a
financial return due to they haven’t to pay any tax to government.
Looking for the inside there’ll be another thing if our people had direct participation on the deal and if
most of the gains were to protect vulnerable areas, giving a best quality of life to its people.
For me, the most serious problem is with the foreign companies which all the utilities are taken abroad.
Let’s hope the day we all together understand what nature has belongs to each other and not to forget
the divine and holy order to love god as much as possible and you as yourself.
One of the main concerns that diverse sectors have as for it negotiated by Costa Rica as resources of
the water, is the elimination of tariffs for the export of water toward United States; fact that would be
seen from the point of view of any other commercial activity like an opportunity and an important
achievement; but that from the point of view of the protection of the water resources constitutes a
serious threat, it is of to be expected that this commercial incentive will intensify the massive extraction
of water of our aquifers for its export, without the country can take the necessary measures so that this
activity doesn't affect the real readiness of the resource seriously.
The country lacks a Law of water Resources that regulates this commercial activity in efficient form and
that it endows of the instruments and control mechanisms, prevention, and sanction to the authorities
of the Ministry of Environment and Energy (MINAE), that are required for integrated administration,
fair, equal and sustainable of the water.
All we know that our country has been blessed in a lot of areas, but specially what to water concern.
11
EEN
NG
GLLIISSH
H IIII
There are rivers every where; its true that we don’t have any lake but there are some lagoons and on
the north border side you can find a bunch of big rivers such as Sarapiquí, San Carlos and San Juan
among others; and close to Panama there are also great rivers such as térraba, sixaola and others.
Costa Rica is situated between two oceans: Caribbean and Pacific, and a big percent of its areas have
been designated for conservation and due to its climate biologist have found the 5% of biodiversity of
the world.
However the world change every day and new rules are required the worlds near 7000 millions
habitants and all of them need water to survive. How to get it is the question, how much people have to
pay we don’t know.
The CAFTA presents a real deal for the water and open the possibility to investors in order to gain a
financial return due to they haven’t to pay any tax to government.
Looking for the inside there’ll be another thing if our people had direct participation on the deal and if
most of the gains were to protect vulnerable areas, giving a best quality of life to its people.
For me, the most serious problem is with the foreign companies which all the utilities are taken abroad.
Let’s hope the day we all together understand what nature has belongs to each other and not to forget
the divine and holy order to love god as much as possible and you as yourself.
12
EEN
NG
GLLIISSH
H IIII
IV.
Conclusion
U.S. law reflects a balance between the interests of IPRs holders and consumers. Most U.S. IPRs
rules are formulated in terms of general principles and exceptions to them. The FTAs negotiated by the
United States largely reflect the general rules of application, though not in all cases. What the FTAs do
not adequately reflect is the interplay between rule and exception that establishes the balance. This is
of special importance in areas such as public health regulation where incomplete familiarity with the
flexibility inherent in the U.S. system may lead its trading partners to conclude that restrictive
implementation of the FTAs is required.
In the negotiating process, developing countries should carefully consider whether the capacity of their
domestic legal and regulatory system will permit them to balance interests as does the United States. It
is probably unwise to accept commitments that will strain domestic capacity and which may lead to the
application of rules in a more restrictive manner than the agreements require. If commitments are
accepted, developing countries should pay careful attention to implementing the agreements in a way
which properly reflects the domestic public interest.
It is not only the public in developing countries which faces risk from these FTAs. So also the U.S.
public faces risk. USTR assures Congress that the agreements do not tie the hands of the domestic
legislator. That is a position perhaps comfortably taken by the more powerful of the parties to an FTA.
Yet it is almost inevitable that when Congress considers changing domestic law, arguments will be
made by industry groups that to do so may violate America’s international obligations and damage the
national interest. Congress may choose to ignore U.S. international obligations, but it would be
surprising if Congress were not at least somewhat reluctant to do so. The United States is increasingly
bound by a set of highly restrictive intellectual property and regulatory commitments that may not over
time be seen to be consistent with the American public interest.
13