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Costa Rica’s accession to the free trade deal it concluded with the US in 2004 has hit another delay, this time over the constitutionality of its implementing legislation.
With the exception of Costa Rica, the Dominican Republic – Central America Free Trade Agreement (DR-CAFTA) has already entered into force for all other parties to the treaty, i.e. the Dominican Republic, Guatemala, El Salvador, Honduras, Nicaragua and the US. In Costa Rica, however, large-scale opposition led the government to delay the congressional ratification process until the agreement was approved by popular referendum in October 2007 (Bridges Year 11 No.6 page 17).
Since then, the Costa Rican Congress has approved twelve pieces of implementing legislation. However, the thirteenth and last bill – on the implementation of DR-CAFTA intellectual property provisions – has run into strong opposition. On 11 September, the country’s constitutional court ruled that the draft legislation was unconstitutional because the government had not consulted indigenous people about an amendment that would have allowed patenting of traditional knowledge under certain circumstances.
Article 78 of Costa Rica’s Biodiversity Law explicitly states that intellectual property protection obligations do not apply to inventions “essentially derived from knowledge which is associated with traditional or cultural biological practices in the public domain.” Article 66 of the same treaty recognises the right of local communities and indigenous peoples “to oppose any access to their resources and associated knowledge, be it for cultural, spiritual, social, economic or other motives.” In addition, ILO Convention 169 Article 6.1(a) requires governments to hold such consultations “whenever consideration is being given to legislative or administrative measures which may affect them directly.”
After the Constitutional Court’s September verdict, the government removed the amendment from the CAFTA implementing legislation. Although the Costa Rican Congress approved the revised law, the opposition Citizen’s Action Party (PAC) sent it back to the judiciary for another opinion on its constitutionality. In particular, the PAC claims that the government had ignored the court’s previous recommendation to consult with indigenous people, and should still do so before finalising legislation. According to most estimates, indigenous people account for about 1 percent – or some 35,000 individuals – of Costa Rica’s total population of 3 million.
If the Constitutional Court agrees with the opposition, the accession process could be held up for several weeks if not months, partly because the law would need to be translated into native languages. The court should issue decision before 20 November.
The US and other CAFTA partners have agreed to give Costa Rica until 1 January 2009 to pass implementing legislation. As the original deadline of 1 March 2008 had already been extended once to 1 October, there are some doubts about a further prolongation.
Even if the legislation is approved by the year’s end, Costa Rica may face a long wait before CAFTA enters into force, as Peru has learned to its cost.
US Wants More from Peru on Pharmaceuticals, Logging
Although the Peruvian Congress overwhelmingly ratified its free trade agreement with the US in June 2007 and US legislators approved it in December 2007, the Bush administration has yet to certify that Peru’s implementing legislation fulfils the treaty’s obligations. Problems have arisen with regard to Peru’s pharmaceutical patent regulations, including protection for clinical test data and procedures to solve conflicts regarding patent infringements before a generic version of a brandname drug is released to the market. US officials also say that the Peruvian Congress’s has failed to amend the penal code so that it requires stiffer prison sentences for individuals found guilty of illegal logging.
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