Free trade or women`s rights?
January-March 2018
By: Kate Lappin

Women’s health outcomes are threatened by trade agreements that enable the privatization of health services and reduce access to generic and subsidized medicines. Trade agreements increasingly include service chapters that require state services to be opened to foreign investment if any part of the industry is currently provided by the private sector. Women’s access to affordable medicines is threatened, particularly by the inclusion of the two largest providers of generic medicines, India and China, in RCEP. Monopoly protections awarded to pharmaceutical companies will significantly increase the costs of medicines, which will particularly impact on the poorest. One study found that the TPP will drastically reduce the percentage of HIV-positive Vietnamese with access to antiretroviral therapy from 68 percent to 30 percent. In Malaysia, the price of the breast cancer drug Herceptin could go from $2,600 to $44,000. Evidence suggests that when health care is privatized or becomes more costly, rural and low-income families are less likely to spend on women’s reproductive health care.

Intellectual property rights have been awarded for traditional plants and medicines used by rural and indigenous women for generations, but “discovered” by foreign corporations (or foreign corporations who have purchased the rights from researchers). For example, women in northern Thailand have used a traditional root, pueraria mirifica, for various hormonal problems, including those related to menstruation, menopause and fertility, and, consequently, have some of the lowest breast cancer rates in the world. They often sell the product at local markets. In 2004, the United States was awarded a patent for the plant, including for simply drying or pulverizing it.

Deregulating and privatizing services

The liberalization of trade in services is a key provision of RCEP. The purposes of the trade in services chapter and related provisions are twofold. First, to increasingly privatize services such as water, energy, health and education. And second, to remove the regulations on those services that might relate to costs, licensing requirements, environmental impacts, health standards, competencies of the provider, accessibility and technical standards.

RCEP may replicate or even go further than the trade in services chapter and domestic regulation disciplines contained in the TPP. The chapter goes beyond the WTO’s General Agreement on Goods and Services, in that the GATS listed services to be liberalized, while recent chapters drawn from the TPP cover all services unless specifically excluded. In addition, the WTO allows for domestic regulation that is in the public interest, while trade agreements restrict this to regulations that are “objective,” “transparent” and “not more burdensome than necessary.” A regulation that requires water to be provided to poorer or rural communities, or sets pricing rules, may be deemed “burdensome” or not “objective.” Meanwhile, the “ratchet” provisions of trade agreements also prevent governments from introducing new regulations or deciding to create publicly owned services in areas that have private investors operating. The principle that investors must receive “fair and equitable” treatment is the most used principle in investors’ successful claims against nations. The principle is used to protect investors’ “legitimate expectations,” which includes an expectation that regulations won’t change (even following a democratic electoral change) and that nations will utilize state power to protect investor profits. When governments seek to reverse privatization, or remunicipalize essential services, in order to meet their human rights obligations, they are exposed to the risks of ISDS cases, as has occurred in Argentina and Mexico.

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