Thailand’s Free Trade Agreements and Human Rights Obligations
Prepared by FTA Watch Thailand, March 2005,
for Submission to the 84th Session of the UN Human Rights Committee
Introduction
Since 2002, the government of Thailand, under the leadership of Pol Lt-Col Thaksin Shinawatra, has made considerable efforts to initiate and expedite bilateral and regional trade agreements (FTAs). The Prime Minister announced clearly that his government would “employ free trade area negotiations as Thailand’s economic tactics in the areas of international trade and investment” (keynote address, 18 February, 2004). At present, agreements have been signed with China, India, Bahrain, and Australia. Negotiations are currently in progress with the United States of America (US), Japan, Peru, New Zealand, BIMSTEC (members consisting of Bangladesh, India, Myanmar, Sri Lanka, Phutan, Nepal and Thailand) and the European Free Trade Association (EFTA includes Switzerland, Norway, Iceland and Liechtenstein).
FTA negotiations with developed countries in particular have an agenda that goes beyond trade in goods. They almost without fail include deregulation of investment measures, liberalization of trade in services, and implementation of competition policies. Also, trade-related intellectual property rules in FTAs risk undermining Thailand’s ability to take measures to ensure access to affordable medicines. Moreover, the elimination of tariffs on agricultural goods in FTAs may have an affect on the livelihoods of small farmers, thereby affecting food security of rural communities.
This would undermine Thailand’s ability to comply with its obligations under the International Covenant on Civil and Political Rights, especially the right to life (article 6, as interpreted by HRC General Comment No. 6 (1982)) and the rights of the child (article 24, as interpreted by HRC General Comment No 17 (1989). These obligations include the need to “take all possible measures to reduce infant mortality and to increase life expectancy, especially by adopting measures to eliminate malnutrition and epidemics.”[1]
Moreover, FTA negotiations have been conducted secretively, without sufficient consultation and participation of public-interest civil society groups. Even though the government claimed to consult with people through several organised meetings, only limited groups of people have opportunities to participate. There was a lack of access to the draft negotiating texts in all sectors, which created difficulties for people to assess the potential impacts from the negotiations. Particularly, in the negotiations with the US, the Thai government had a verbal agreement, demanded by the US, to keep the process of negotiations secret. The conducts of the Thai government and the US negotiators in relation to FTA negotiations are inconsistent with their human rights obligations. These include the obligation to respect access to information (article 19, as interpreted by General Comment No. 19 (1983)); to ensure every citizen’s right to participate in the conduct of public affairs (article 25, as interpreted by General Comment No. 25 (1996); to encourage public participation in policy decision making and monitoring the state’s exercise of power (article 76 in the Thai Constitution[2]); and to obtain wider and broader transparency in the negotiating process (Sec. 2102 (b) (5) of the US’s Bipartisan Trade Authority Bill 2002[3]).
FTA Watch is a coalition of public-minded academics, independent organizations established under the constitution, and non-government organizations that was formed in 2003 out of concern for the non-transparent manner in which FTA negotiations have been conducted by the government. Its aim is to provide the public with in-depth information and analyses of the FTAs, particularly on their potentially adverse effects on the more vulnerable sectors of Thai society, i.e., small farmers, small businesses, people living with HIV/AIDS, and the poor in general.
This submission to the Human Rights Committee’s 84th Session outlines FTA Watch’s main concerns relating to the impacts of FTAs on the enjoyment of civil and political rights in Thailand. The first part outlines our concerns relating to the impacts of trade rules in FTAs on Thailand’s ability to comply with its human rights obligations under the Covenant (Part I). The second part delineates our concerns with regards to lack of access to information and participation in FTA negotiations (Part II).
I. Real and Potential Impacts of FTAs
Intellectual Property Monopoly, Access to Medicines and the Right to Life
Thailand has a dramatically high rate of HIV/AIDS. The Bureau of Epidemiology, Ministry of Public Health has estimated that there are 700,000 persons currently infected by HIV. Among these, 170,000 are AIDS patients. Moreover, there are now 50,000 HIV-infected people who get anti-retroviral drugs and the estimated numbers for 2006 is 100,000. Each year, there are 25,000 newly infected persons.
The government of Thailand has an obligation under international human rights law to ensure access to affordable medicines for all. [4] The initial report of Thailand to the Human Rights Committee underlines the fact that the government of Thailand has taken measures to limit the spread of HIV/AIDS and increase access to ARV treatment.[5] However, measures taken by Thailand to ensure access to medicines to treat epidemics such as HIV/AIDS risk being undermined by trade-related intellectual property rules in FTAs. This could put Thailand in a situation where it is unable to comply with its obligation to “take all possible measures to reduce infant mortality and to increase life expectancy” according to the right to life (article 6, as interpreted by General Comment No. 6 (1982) and its obligations under the rights of the child (article 24, as interpreted by General Comment No. 17 (1989).
Of greatest concern are the intellectual property rules in the US-Thailand FTA negotiations. The biggest threats are in the area of expanded patent protection and protection of undisclosed information concerning medicines. These rules will increase the monopoly rights of patent owners that render medicines unaffordable for the poorest and most vulnerable groups.
The US successfully used unilateral trade sanctions against Thailand to the tune of 165 million dollars in 1989 to force the government to amend and expand the coverage of patent law even before the Trade Related Intellectual Property Rights (TRIPs) negotiations were concluded in the WTO. There is every reason to believe that the US will try its best to extract from Thailand further commitments beyond what is stipulated in the WTO TRIPs agreement, since the US has already achieved this in FTAs with Morocco, Singapore and Chile.
In these FTAs, the US successfully negotiated a number of measures to increase the level of IPR protection. Access to medicines in Thailand would be limited by such measures, which go further than current provisions under Thai law. These include:
- Restriction of parallel importation by giving patent holders the means to block it, thereby limiting the government’s ability to shop around for cheaper medicines in foreign markets;
- Restriction of the grounds for compulsory licensing, making it more difficult for governments to increase access to affordable medicines when necessary;
- Extension of patent protection beyond 20 years, thereby delaying the introduction of more affordable generic medicines;
- Prevention of the use of clinical trial data by generic producers with 5-10 years of data exclusivity protection, thus delaying or even preventing generic competition.
The Letter of Notification from the US Trade Representative to Congress makes clear that these measures are part of the objectives of the US. The Thai government must therefore be well aware of the intention of the United States to bring patent protection up to the standards set in previous FTAs, which will inevitably lower the domestic standards of protection of the people’s right to access medicines.
Proposed recommendations:
Thailand should undertake an assessment of the impact of strict intellectual property rules on its ability to protect the right to life before making any new commitments under an FTA.
Thailand should also take into account its international human rights obligations under the Covenant when negotiating and implementing trade-related intellectual property rules.
Small Farmers’ Right to Livelihood
The elimination of tariffs on agricultural goods imported from countries that are parties to the FTAs, which is the main feature of all bilateral FTAs, can have a devastating effect on the livelihoods of small domestic producers. This may undermine Thailand’s ability to “take every possible economic and social measure” to “eradicate malnutrition” under the right to life (article 6, as interpreted by General Comment No.6 (1982) and to “eradicate malnutrition among children” (article 24, as interpreted by General Comment No. 17 (1989).
A case in point is the agreement with China to eliminate completely tariffs on 116 types of fruit and vegetables. This came into effect on October 1, 2003. Within a year, imports from China surged by 180% resulting in a plunge in prices of most temperate fruits and vegetables in the domestic market by 30-50%. It is estimated that 100,000 farming families or 500,000 people have been negatively impacted by this surge in cheap imports, thereby affecting their access to food and nutritional input. Some, like garlic and onion growers, have suffered especially severe effects with their livelihoods threatened. Despite warnings by academics, the government had chosen not to take any safeguard measures.
Another 100,000 dairy farmers are being threatened in the same way by the FTA with Australia. Though the government has argued that tariff reductions and quota increases for dairy imports from Australia will be gradual and spread over a period of 20 years, farmers know that their livelihoods have been written off. It took many protests by the farmers before the government promised some assistance for them to adjust to the change. Corn and soybean farmers, however, have already been affected by market liberalization under the WTO and consequent dumping by the US agri-businesses in the last ten years with average prices decreasing by over 10%; it is anybody’s guess how much further they will be affected by the FTA under negotiation with the US.
Proposed recommendations:
Thailand should undertake an assessment of the impact of trade rules on its obligation to protect the right to life and its ability to take measures to eradicate malnutrition before undertaking any new commitments under FTAs.
Thailand should also take into account its international human rights obligations under the Covenant when negotiating and implementing agricultural trade rules.
II. Access to information and participation in the conduct of FTA negotiations
The High Commissioner has, on several occasions, encouraged States to undertake human rights impact assessments (HRIAs) of trade-related rules and policies systematically (E/CN.4/2004/40, paragraph 55). HRIAs would require not only participatory methodologies – to ensure assessment quality as well as to implement the right to participate – but also comparing the real and potential impact of trade policies against a range of comprehensive indicators based on internationally recognized civil, cultural, economic, political and social rights. Significantly, the principle of non-discrimination as a core human rights principle promotes the disaggregation of impacts between men and women, different national, ethnic and racial groups and so on, promoting participation of a broader range of views and experiences within any assessment.
However, Thailand has conducted FTA negotiations in a secretive manner, without sufficient consultation and participation of public-interest civil society groups. The conduct of the Thai government in relation to FTA negotiations is inconsistent with its human rights obligations. These include the obligation to respect access to information (article 19, as interpreted by General Comment No. 19 (1983)); to ensure every citizen’s right to participate in the conduct of public affairs (article 25, as interpreted by General Comment No. 25 (1996); to encourage public participation in policy decision making and monitoring the state’s exercise of power (article 76 in the Thai Constitution); and to obtain wider and broader transparency in the negotiating process (Sec. 2102 (b) (5) in the US’s Bipartisan Trade Authority Bill 2002).
This has been reaffirmed by the Senate Standing Committees on Foreign Affairs; Economic, Commercial and Industrial Affairs; Agriculture and Cooperatives; and Finance, Banking and Financial Institutions. These Committees conducted studies of relevant documents and interviews with responsible government negotiators in the Ministries of Foreign Affairs and Commerce and held consultations with business organizations, NGOs and academics, including members of FTA Watch. As a result, the Committees issued a statement dated October 10, 2003, raising the following concerns over the nature of the negotiations.
1. The negotiation processes had been conducted in a rushed manner. Framework agreements had been concluded with 6 countries within 2 years and several more were expected to be completed without any clear information on their long-term impact.
2. There was no evidence of systematic, comprehensive studies on the impact of the FTAs, especially from the social, environmental, and cultural perspectives. A great number of questions and concerns were raised by the private sector on the economic studies that were available and the lack of clear answers from officials.
3. There was a lack of participation by all stake-holders in determining the country’s position in negotiations; consultation was limited to private businesses. Negotiating positions had been determined on the basis of an assessment of levels of competitiveness in the private sector alone without regard to the overall social, cultural and environmental impacts.
4. Many commitments made in the signed framework agreements would necessitate prior approval by Parliament according to Article 224 of the constitution, which governed the signing of international treaties that affect the country’s sovereignty. In particular, these commitments implied changes to or restrictions on domestic legislation.
5. There was insufficient preparation to mitigate the impact of the FTAs. The only response stated was for those affected to change occupation or for farmers to change crops. This could lead to a major problem of food security if farmers were forced to abandon food crops due to cheaper imports as a result of the FTAs.
Consequently, the statement called for the government to undertake several measures to address the above mentioned concerns. The most significant recommendations concern
- a submission for parliamentarian scrutiny and approval of any commitments made in any FTA negotiation which would result in any infringement on state sovereignty or require the passing of laws,
- and the establishment of a consultation process, which would include all sectors of society, prior to the signing of any agreement.
Moreover, a House of Representatives Sub-Committee on FTAs recommended in November 2004 that the government consult all stakeholders by means of public hearings organized under the existing guidelines of the Office of the Prime Minister.
In addition, the National Human Rights Commission, an agency established under the Constitution and independent of the government, has repeatedly voiced concerns over the lack of transparency and participation in the process of FTA negotiations, and on the negative impact of FTAs on the poor.
Until now the government has responded to none of these proposals, recommendations and concerns. Nor has there been any significant change in the government’s method of conducting negotiations. The Department of International Trade Negotiation, Ministry of Commerce, put more effort into publicizing progress reports on the negotiations and set up “suggestion boxes” on their website and at a call centre.
More significantly, the government went ahead with signing the Free Trade Agreement with Australia and New Zealand without the involvement of Parliament and without disclosing the content of the agreement to the public until after the pact, and there is also no translation of the agreement into Thai language.
There are good grounds for questioning the transparency of the ongoing negotiations over the Thai-US FTA. An official negotiator from the Ministry of Foreign Affairs publicly admitted that the US had requested that the Thai chief negotiator sign a confidential agreement before the start of negotiations. (No details or context of the negotiations is accessible to the public so the content of the proposed agreement is not known.) At that time the chief negotiator reportedly did not sign but gave a ‘gentleman’s agreement’ to what the US had requested.
Proposed recommendations:
Thailand should ensure access to information to government studies and government negotiating positions under FTAs.
Thailand should ensure greater consultation and participation of public-interest civil society groups in FTA negotiations.
Conclusion and Recommendations
The bilateral Free Trade Agreements that the Thai government has already signed or is in the process of negotiating with several countries invariably have a significant impact on millions of Thais. In some cases, FTAs infringe on the human rights of Thai citizens, such as the right to the enjoyment of the highest attainable standard of health and the right to livelihood.
Moreover, the Thai government has repeatedly failed to take heed of the concerns voiced by various sectors and institutions, or to provide all the stake-holders with the opportunity to participate meaningfully. It has refused to disclose the details of negotiations and neglected to undertake due parliamentary process recommended by the Senate before signing FTAs. Such processes are violations of the rights to freedom of information and to participate in public affairs.
FTA Watch calls on Parliament and the Thai people to demand that the Thaksin Shinawatra government take into accounts its obligations under the International Covenant on Civil and Political Rights and international human rights law when negotiating and implementing FTAs.
Moreover, FTA Watch requests that the Thai government:
1. Remove intellectual property rights from Free Trade Agreement or other trade negotiations or agreements.
2. Undertake detailed impact assessments of the effects of all proposed trade liberalization measures on each sector of the economy, including the overall impact on the economy, human rights obligations, society, culture, the environment and sovereignty. These impact assessments must be conducted by inter-disciplinary groups of independent, impartial and non-partisan researchers.
3. Grant access to results of studies and government negotiating positions must be made public and public hearings must be conducted, involving stake-holders in all regions of the country.
4. Grant access to negotiation frameworks and maximum negotiating positions that reflect research results and public responses must be submitted to Parliament for approval at least 90 days prior to the start of negotiations.
5. Ensure that the Thai Senate and the House of Parliament each appoint an official committee to monitor closely the negotiation processes.
6. Institute a mechanism to ensure that the people, not only from the business sector, have access to information and the opportunity to express their opinions at all stages of the negotiations.
7. Ensure that the results of negotiations must be submitted to both the Senate and the House for approval at least 90 days prior to the signing of any agreement.
8. Ensure that all documents related to the negotiation, including the resulting agreements, must be available in Thai.
In review with the Thai government, FTA Watch proposes the Human Rights Committee the following questions:
1. Does the Thai government have a concern on its people’s access to medicines at all? If yes, why has it not immediately implement the WTO’s Decision of 30 August 2003 on “IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH”, considering that there is a severe shortage of anti-troviral Effavirenz?
2. Does the Thai government consider a demand for TRIPs-Plus, which is likely to result in a longer period of monopoly, whether from data exclusivity or patent extension, as a problem of human rights?
3. How can the Thai government assure that in all trade negotiations rights to access to medicines will not be violated?
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Related Information
Thailand’s Free Trade Agreements and Human Rights Obligations (PDF File)
Request for an Urgent Appeal to Mr.Paul Hunt
FTA Watch and allies sent an appeal to the Special Rapporteur
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[1] Human Rights Committee, General Comment No. 6 (1982), The right to life, 30 April 1982.
[2] Section 76 of The Constitution of the Kingdom of Thailand says “The State shall promote and encourage public participation in laying down policies, making decision on political issues, preparing economic, social and political development plans, and inspecting the exercise of State power at all”.
[3] In the US’s Bipartisan Trade Authority Bill 2002, Section 2102 (b) (5) TRANSPARENCY says:
The principal negotiating objective of the United States with respect to transparency is to obtain wider and broader application of the principle of transparency through
(A) increased and more timely public access to information regarding trade issues and the activities of international trade institutions;
(B) increased openness at the WTO and other international trade fora by increasing public access to appropriate meetings, proceedings, and submissions, including with regard to dispute settlement and investment; and
(C) increased and more timely public access to all notifications and supporting documentation submitted by parties to the WTO.
[4] See also the UN Commission on Human Rights, Access to medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria, Resolutions 2004/26, 2003/29, 2002/32, and 2001/33, http://ap,ohchr.org/documents/E/CHR/resolutions/E-CN
[5] United Nations Human Rights Committee, Initial Report of Thailand, CCPR/C/THA/2004/1 at paragraphs 537-539.