This research examines the application of intellectual property (IP) law to medicines and the political struggles this has generated, focusing on the experience of three countries inscribed in the Central America Free Trade Agreement (CAFTA): Guatemala, Costa Rica, and the Dominican Republic. The agreement contains pioneering "TRIPS-plus" provisions that reconfigure the role of the state in patent enforcement; its detractors warn that it will limit access to generic medications, straining public health services in impoverished countries. As a result, debates over CAFTA's IP provisions have pit the human rights movement, which has increasingly embraced economic and social rights such as the right to health, directly against advocates of free trade, in which IP rights have taken on an increasingly central role.
The intellectual merits of this project lie in its examination, through the lens of IP, of the broader dynamics of globalization and their implications for rights protection and participatory democracy. Latin American states have long grappled with the challenge of balancing needs for foreign investment with attention to urgent social priorities. Yet trade agreements inscribe specific policy mandates into an emergent body of transnational law, creating a new set of fora in which the relative amounts of attention paid to these needs is decided. Analyses of globalization's impact often fall into two polarized camps -- some commentators tout trade liberalization as the solution to poverty, while others decry it as an instrument for the exploitation of the developing world. Both views tend to assume the text of the agreements determines their outcomes. Yet in fact, trade agreements like CAFTA open possibilities for both positive and negative outcomes; the balance between these is determined by the way specific laws are understood and implemented in different national contexts. Social scientific research can shed light into this process, illuminating possibilities for more positive outcomes.
This project examines five ways in which actors on the ground in three CAFTA countries are working to shape the interpretation and implementation of the agreement's IP chapter. Examining the advancement of cases before international human rights courts, the use of Constitutional challenges, the advocacy of contrasting IP policies at the WTO, mass protest, and the transnational lobbying of US elected officials. It draws on in-depth interviews with those involved in social movements around this issue, exploring the forces they draw on, the reasons for their choices, and the implications of these for the construction of an IP policy that responds to concerns about access to medications while adhering to the terms of the agreement. Ultimately, this study seeks to understand the process whereby the IP laws in CAFTA, once written, are shaped and interpreted. What local, national, and transnational forces shape the success of specific tactics? To what extent are diverse tactics mutually reinforcing? What forces drive the gains achieved thus far, and what are the implications of these for the future?
This research has broad public significance. It contributes broadly relevant insights about IP law, a field that has developed largely beyond the scrutiny of social scientific inquiry into its broader implications. While acrimonious debates about trade policy are easy to find, more nuanced discussions about the implications of these aspects of trade liberalization for democracy, sovereignty, and human rights are lacking. This project will help train students in the kind of cross-border, comparative research increasingly necessary to understand our world. Its findings will be disseminated widely in academic circles and beyond, and will be relevant to diverse publics who share a stake in the future of health, wealth, and trade in our hemisphere.
