The Structural Power of Strong Pharmaceutical Patent Protection in U.S. Foreign Policy

Abstract

My basic thesis in this paper is that the humanitarianism underlying U.S. assistance particularly in preventing the spread of the HIV/AIDS pandemic around the world plays a significant role in simultaneously disguising and legitimating the uncompromising support of the United States government for strong international pharmaceutical patent protection. Indeed, by loudly proclaiming its generosity, the United States manages to disguise the fact that its commitment to a strong regime of pharmaceutical patent protection has a lot to do with limiting access to antiretroviral drugs to large numbers of those infected with HIV/AIDS outside the United States. Thus I show that there are two distinct, albeit mutually reinforcing, stances within U.S. foreign policy on HIV/AIDS. The first of these stances favors strong international pharmaceutical patent protection, unencumbered by any restrictions, as the best alternative to ensuring availability of drugs to treat those infected with HIV/AIDS. Unlike the first stance that is uncompromising in supporting patent protection, the second position is steeped in humanitarian gestures, such as extending U.S. assistance particularly in efforts to prevent the spread of HIV/AIDS outside the United States. Strong patent protection is, however, the primary U.S. foreign policy position on how best to facilitate access to essential medicines under patents held by U.S. and western pharmaceutical corporations. In that sense, provision of humanitarian assistance ought to be understood as the policy prescription most compatible with the non-negotiability of strong pharmaceutical patent protection. I also show that in addition to distancing the relationship between strong pharmaceutical patent protection and access to essential drugs by highlighting the more appealing image of the United States as a major benefactor of the global campaign against HIV/AIDS, U.S. foreign policy on HIV/AIDS has turned to poverty in sub-Saharan Africa as a major explanatory factor to account for the extremely low level of access to antiretroviral drugs on patents to treat the disease. Increasing U.S. financial support to combat the spread of the pandemic while simultaneously harping on the argument that Africans are too poor to afford antiretroviral drugs plays particularly well to ward off criticism regarding the apparent harshness of U.S. support for strong patent protection.

Seen in this context, I argue U.S. policy is moving in the direction of de-linking or discrediting any association between strong patent protection and access to antiretroviral drugs for HIV/AIDS infected populations outside the United States. Placing a high premium on humanitarianism as the primary policy response to the pandemic in turn contributes to the invisibility of the link between strong patent protection and access to essential drugs. It is, therefore, my argument that while the humanitarianism that typifies U.S. foreign policy on HIV/AIDS and other life threatening diseases is important, U.S. support for a strong patent regime imposes huge barriers of access to patented antiretrovirals. Specifically, the strong protection of patents in the WTO's Trade Related Aspects of International Property Rights Agreement, (TRIPS or the treaty hereinafter), stands in the way of enabling the treaty to be construed to permit governments to override it with a view to providing antiretrovirals drugs to thousands of Africans infected with HIV/AIDS.

To the extent that patents are therefore a barrier to access antiretrovirals, the TRIPS Agreement is no more than a form of structural power. The United States, together with its coalition of western intellectual property exporting countries, exercises structural power because they prevailed in defining patent protection in the treaty in such a manner as to make antiretrovirals unaffordable and inaccessible to those that need them most. The countries most afflicted by the HIV/AIDS pandemic do not have the wherewithal to undertake the research and development necessary to produce or even manufacture these much-needed drugs. In addition, these countries do not stand in the same position as the United States to be able to shape the international patent protection in a manner that enables them to facilitate affordable access to drugs produced elsewhere. In particular, by defining patents exclusively in terms of the rights of patent holders while simultaneously limiting the obligations patent holders may have to consumers of patented products, as is the case in the U.S. domestic market, the TRIPS Agreement acts as a significant barrier limiting access to essential medicines under patent for countries that do not have the wherewithal to set the international intellectual property agenda like the United States.

Thus, by silencing alternative conceptions of intellectual property rights that balance the rights of patent holders with the obligations patent holders may have to consumers of patented products, which would work better to facilitate access to essential medicines, the law and foreign policy of strong patent protection reflects the relative ability of the United States to impose its will on less powerful countries. This often imperceptible asymmetrical exercise of power through law and policy inscribes outcomes of life and death for millions infected with HIV/AIDS outside the United States. In my view, to sooth these outcomes, U.S. foreign policy has sought to downplay its crass commitment to strong patent protection while overplaying its magnanimity in providing humanitarian assistance particularly for efforts to prevent the spread of the HIV/AIDS crisis. In short, the discourse of charity and humanitarianism accompanying the uncompromising support of patents at any cost simply disguises the U.S.'s priorities in ensuring its multinational pharmaceutical companies acquire markets for their drugs without any threat to their profitability even in the face of heart-wrenching human need.

This paper also critically examines the efficacy of the claim that poverty is by far the most critical barrier to affordable antiretrovirals. While it is undoubtedly true that poverty is an integral barrier to affordable antiretrovirals, it is not an insuperable barrier. For example, as demonstrated in Part III, over the last five years or so, prices of antiretrovirals in sub-Saharan Africa have fallen by large margins, making them affordable to an increasing number of people. This also means that the funds devoted by donors and governments for treatment can benefit ever-increasing numbers of indigent HIV/AIDS patients. Besides, pricing of antiretrovirals particularly in East Africa is demonstrated to be governed less by the laws of the market than the laws of the jungle. This further undermines the argument that poverty is an insuperable barrier of access to treatment. Ultimately, I claim that while poverty is an integral component to lack of access to affordable antiretrovirals, this in and of itself does not prove that patents are not integral to lack of access to affordable antiretrovirals. Both poverty and patents are integral parts of the limitations to access to affordable antiretrovirals.

Part I begins by describing the rationale for strong support for patents in U.S. foreign policy and how this policy differs with the conception of patent protection within the United States. I argue that this view of patents has eclipsed into obscurity the view that patents also ought to be regarded as instruments of public policy giving their holders rights subject to certain conditions. In Part II, I attempt to discern where, if at all, access to HIV/AIDS drugs for indigent populations fits within the United State's national interests. I begin this inquiry by tracing Africa's place in U.S. foreign policy/national interest and then explore the engagement of the Clinton and Bush administrations in responding to increasing concern over the reluctance of the United States to support access to antiretrovirals in sub-Saharan Africa. Finally, in Part III, I contextualize the emergence of poverty as the major barrier to access of HIV/AIDS drugs within the U.S.'s policy of strong patent protection. I then proceed to critically examine the foregrounding of poverty and the distancing of patents in the continuing debate on access to antiretrovirals.