|This is English translation of the written opinion (Korean) submitted to the Korean Ministry of Trade on July 25, 2016. For PDF file, click here (Korean text, English text).|
Pursuant to Article 8 of the Act on the Procedures for Concluding Commercial Treaties and the Implementation Thereof, we, the undersigned organizations and individuals, submit a written opinion on RCEP negotiation. We also call for a face-to-face meeting with the Korean negotiators and public hearings on RCEP.
1. Principle of Free and Fair Trade
According to the Foreign Trade Act, the principle of foreign trade of South Korea is a free and “fair” trade in accordance with the treaties on trade entered into and promulgated pursuant to the Constitution and the generally accepted international laws and regulations (Article 3(1)). Further, under Article 3(2) of the Act, Korean government has to apply such restrictions as provided by any treaties on trade to which South Korea is a party and by the generally accepted international laws and regulations.
Unfortunately, the Korean negotiators failed to abide by the free and fair trade principle and negotiate RCEP in a way that violates treaties on trade and the generally accepted international laws and regulations.
2. RCEP IPR Negotiation
2.1. Relevant Treaties on Trade and International Laws
TRIPS Agreement ensures the sovereignty of states to determine the appropriate method of implementing TRIPS provisions within their own legal system and practice (Article 1). Further, TRIPS Agreement provides that “the protection and enforcement of IPRs should contribute to … a balance of rights and obligations” (Article 7), and allows states to “adopt measures necessary to protect public health and nutrition, and to promote the public interest” (Article 8). Article 31 of TRIPS Agreement sets forth conditions for compulsory licenses of patented inventions. It is a national sovereignty that under which circumstances the states may grant the compulsory licenses. Long ago such an autonomy was confirmed by the multilateral trade organization in the Declaration on the TRIPS Agreement and Public Health in 2001 WTO Ministerial Conference (“Doha Declaration”).
Both the Universal Declaration of Human Rights (Article 27) and the International Covenant of Economic, Social and Cultural Rights (Article 15) recognize everyone’s right to science and culture, which includes the right to take part in cultural life and the right to enjoy benefits of scientific progress and its applications, in addition to the author’s right. The Korea National Human Rights Commission conceptualizes such a right under the rubric of the “right to information and culture.” The United Nation’s human right body has adopted two important reports of the Special Rapporteur in the field of Cultural Rights in 2014 and 2015.
In its Copyright Report of 2014 (A/HRC/28/57), the UN body, from the human rights perspectives, calls for an “attention on important themes that may be lost when copyright is treated primarily in terms of trade: the social function and human dimension of intellectual property, the public interests at stake, the importance of transparency and public participation in policymaking, the need to design copyright rules to genuinely benefit human authors, the importance of broad diffusion and cultural freedom, the importance of not-for-profit cultural production and innovation, and the special consideration for the impact of copyright law upon marginalised or vulnerable groups.” (¶ 90). And the Copyright Report recommends that “[I]nternational copyright instruments should be subject to human rights impact assessments and contain safeguards for freedom of expression, the right to science and culture, and other human rights” (¶ 94), and requires that the copyright treaties “never impede the ability of States to adopt exceptions and limitations that reconcile copyright protection with the right to science and culture or other human rights, based on domestic circumstances” (¶ 94).
Secondly, the UN human rights body, in the Patent Report of 2015 (A/70/279) makes clear that “[S]tates have a human rights obligation not to support, adopt or accept intellectual property rules, such as TRIPS-Plus provisions” (¶ 104), and “[S]tates should refrain from pressuring other States to adopt TRIPS-Plus provisions or to otherwise forego the use of TRIPS-compliance flexibilities” (¶ 105).
2-2. Problems of Korean Positions in RCEP Negotiation
The Korean negotiators have pushed most strongly the TRIPS-plus provisions that are recommended to refrain from by the UN human rights body. So Korean government directly breaches the domestic law as well as the generally accepted and legally binding international human rights laws. Therefore, all of the TRIPS-plus proposals made by the Korean negotiators should be discarded. Instead, the Korean negotiators have to pursue the human rights compliant rules in the RCEP negotiation.
2-2-1. General Provision and Basic Principles
Korean negotiators opposed the general provision for objectives itself but changed its position to oppose certain languages proposed by other negotiators and suggest highly biased languages. According to the Korean suggestion, the objectives of RCEP IP chapter is “to provide certainty for rights holders and users of intellectual property over the protection and enforcement of intellectual property rights.” This is far away from TRIPS, which has been condemned as unduly ratcheting-up the level of IPR protection globally, and highly skewed by overly emphasizing protection and enforcement of IPRs. The Korean proposal is neither “fair” nor compliant with the international human rights norms.
2-2-2. Grace Period for Patents (Article 5.5)
The Korean negotiators propose the grace period for twelve months. This proposal may bring a conflict with the right to science and culture because an inventor can monopoly and exclude others from using any invention even after it was made public for up to one year.
2-2-3. TRIPS Flexibilities on Compulsory Licenses and LDC Extensions (Article 5.7)
The Korean negotiators opposed the provision for TRIPS Flexibilities on Compulsory Licenses and LDC Extensions. They go directly against the Doha Declaration and the recommendations of the UN human rights body. During the Korea-US FTA (KORUS), the US negotiators proposed to limit the circumstances under which compulsory licenses might be granted but the Korean counterparts strongly opposed it. It is hard to understand why the Korean RCEP negotiators are reluctant to say yes to the proposal of TRIPS flexibilities on compulsory licenses.
2-2-4. Patent Term Restoration (Article 5.13)
The Korean negotiators pushed patent term extensions for delays in patent prosecution and in drug approval process. The patent term extension is the typical TRIPS-Plus provision, its harmful impact on public health having been widely pointed out, and criticized by MSF as infringing patients’ access to medicines living in India and ASEAN countries. In particular, Korea is the single sponsor of patent term extension for delay in patent examination process. This kind of patent term extension may increase a work load of patent examiners, producing poor quality patent, undermining social use of technologies and bringing a conflict with the right to science and culture.
2-2-5. Treatment of Test Data in Marketing Approval Procedure (Article 5.16)
Data exclusivity was introduced in Europe as a supplemental system for countries where a product patent was not allowed. In Korea, data exclusivity was imported by the trade pressure of Europe after Korea unilaterally accepted almost all of the U.S. demands in 1986. Unlike the Korean proposal on data exclusivity in RCEP negotiation, our domestic data exclusivity system is expediently operated in part of a new medicine review policy. However, Korean data exclusivity has little to do with safety of new drug: it plays a role of barriers preventing affordable generic medicines from entering market and reinforces market exclusivity of new medicines. Data exclusivity is harmful as it undermines access to medicine, raises the drug expenditure, reduces competition of pharmaceutical products, and forces unethical repeat of clinical trial. Therefore, Korean negotiators have to stop requiring data exclusivity in RCEP IP chapter.
2-2-6. Measures against Repetitive Copyright Infringers on the Internet (Article 9quinquies)
The Korean negotiators, again solely, proposes the notorious “copyright three-strike rule”. Effective measures to curtail repetitive infringement of copyright means the three-strike rule codified in the Korea Copyright Act. The Korea Human Rights Commission recommended to repeal such a rule and international civil society groups also submitted the same opinion to the Korea National Assembly. And a bill to repeal the three-strike rule was introduced in the previous session of the National Assembly. So the proposal of Korean negotiators should be withdrawn as it is anti-human rights and encroaches legislative power of the National Assembly.
2-2-7. Overall Stance of the Korean Negotiators
The positions of Korean negotiators in RCEP are based upon KORUS IPR text. However, the KORUS IPR text was an outcome of Korean surrender for the purpose of concluding the whole KORUS pact. We know that during the KORUS talk, the Korean IPR negotiators took a firm stand against almost all of the US proposals. It is a shame to see that now the Korean RCEP negotiators put forward what they believed unacceptable. This is nothing more than representing the interests of US industry and carrying out an agency role of USTR.
3. RCEP Investment Negotiation
According to Article 103 of the Charter of United Nations that Korea has ratified (Treaty No. 1059), obligations under the Charter prevails in the event of a conflict with obligations under any other international agreement. Articles 55 and 56 of the Charter requires international relations of Korea with other nations to be based upon “respect for the principle of equal rights and self-determination of peoples” “with a view of the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations.” Further, Korea, as a member of UN, commissioned to promote “higher standards of living, full employment, and economic and social progress and development,” “solutions of international economic, social, health, and related problems, and international cultural and educational co-operation.” However, Korean proposals for RCEP Investment chapter is far from these principle and aim, and leaned to much to the private interests of investors and special treatment for investment.
International investment agreements clash human rights in diverse range of fields, which are hard to enumerate as the concept of investment is too broad and investors are endowed too many weapons to bring states to private arbitration tribunals. For this reason, the UN Human Rights Council adopted a report of an independent expert in 2015 (A/HRC/30/44), which recommends actions States to take on the basis of Article 103 of the Charter of United Nations. Some of them, Korean negotiators have to pay attention, are (in paragraph 62):
(f) States cannot compromise their obligation to ensure human rights by accepting investor–State dispute settlement agreements that allow investors to challenge the State’s labour law, environmental legislation or health codes;
(g) States must ensure that international investment agreements do not undermine their ability to implement the industrial and macroeconomic policies needed for development, which is an essential objective of United Nations “constitutional” law, and take steps to revise promptly existing bilateral investment treaties and free trade agreements with negative effects on human rights. States should test existing bilateral investment treaties and free trade agreements for compliance under their respective Constitutions, and revise or terminate said agreements pursuant to the Vienna Convention on the Law of Treaties when they conflict with human rights obligations;
(j) States should take measures to ensure implementation of the guiding principles on human rights impact assessments of trade and investment agreements and make them legally binding in the domestic legal order;
(o) States should include in bilateral investment treaties and free trade agreements specific provisions on the legal responsibility of transnational corporations and investors to make reparation for environmental, health and other damage caused by their activities, and strengthen domestic criminal law provisions so as to address personal criminal liability of investors and corporation executives for environmental harm or gross human rights violations. To this end, States should establish a monitoring mechanism to assess investor compliance with human rights;
In light of these recommendations, the Korean negotiators have to stop bringing the KORUS Investment text to the RCEP negotiation table. Investors, even when they are Korean, have no reason to be protected regardless of public policy of RCEP countries and the international human rights norms. Investors are also a member of community and society and obliged to act for the benefit of the whole community. Ensuring the public interests has to be main topic of investment agreement.
Like the IPR negotiation, the Koran negotiators are proposing for the investment chapter the same languages as KORUS. We believe this is the case in other sectors, details of which have been kept confidential from the general public. This strategy of Korean negotiators is nothing but serving USTR’s strategy of creation of chain reaction aiming at the domino effect. The former USTR, Robert Zoellick called this strategy “competitive liberalization” for the objective of leveraging bilateral agreements in order to influence regional and multilateral agreements. One of the key criteria of US in selecting an FTA partner was its capacity to influence other countries. The broadest goal of bilateralism in the US playbook is to generate a measurable effect beyond the targeted country. One way to achieve this goal is the creation of a chain reaction, whereby bilateral agreements create a domino effect that transplants US patent norms beyond the original members. As the former USTR Robert Zoellick explained, the “idea is to start out with the leading reformers […] and then try to connect others to it over time”. The hope is for the new partners to actively negotiate similar provisions in their treaties with third countries. It is a disgrace that Korean negotiators act exactly a USTR follower. Even worse is that by doing so the Korean negotiators, public servant, ignores our domestic law and standards of the international human rights instruments.
4. Calling for Face-to-Face Meeting and Public Hearing
Korean negotiators have to establish negotiation strategy in a transparent and democratic process. However, we know that such a process is lacking. Who and in which process have determined the Korean proposals in the RCEP IPR and investment negotiations are crucial to us and we ask the Ministry of Trade to hold a public hearing and face-to-face meetings with civil society members. We hope they take place before the 14th round of August 15 to 19 in Vietnam.
July 25, 2016
- Korean Federation of Medical Groups for Health Rights, KFHR (Korean Pharmacists for Democratic Society(KPDS), Korea Dentists Association for Health Society, Solidarity for Worker’s Health, Association of Physicians for Humanism, Association of Korea Doctors for Health Rights)
- Trade Commission of MINBYUN-Lawyers for a Democratic Society
- Knowledge Commune
- International Trade Research Institute
- Heesob Nam
- Kiho Song
- Hae-Young Lee
 MSF “New threat against affordable medicines in trade negotiations with India and ASEAN” 21 April 2016 http://msfaccess.org/about-us/media-room/press-releases/new-threat-against-affordable-medicines-trade-negotiations-india
 Morin, J-F., 2009, “Multilateralising TRIPs-Plus Agreements: Is the US Strategy a Failure?’, Journal of World Intellectual Property, vol. 12(3), p. 175-197