Law, Politics, and Access to Essential Medicines in Developing Countries

Abstract

This article argues that to advance the struggle for access to essential medicines, it is necessary to identify the global and local regimes that shape the rules that give impetus to particular policy options, while undermining others. In exploring the role of law and politics in this process, the author first outlines the globalization of a standardized, corporate-inspired, intellectual property regime. Second, the author uses the example of the HIV/AIDS pandemic to demonstrate how the stability of this new regime came under pressure, both locally and globally. Finally, it is argued that while the global HIV/AIDS pandemic and the social movements that emerged in response to government inaction have effectively challenged the TRIPS regime, this complex contestation has reached an unsustainable stalemate in which development aid, corporate, and non-governmental philanthropy is simultaneously providing increased availability to drugs while precluding a more lasting solution to the crisis of access to essential medicines in developing countries.

Transnational Legal Process and State Change

“…Indonesia made significant changes to its bankruptcy law in response to IMF conditions during the Asian financial crisis, but implementation was often foiled in practice, as Halliday shows. Kim and Boyle similarly show the limits of structural adjustment conditionalities on education policy in developing countries, and Klug explains the eventual withdrawal of US legal challenges against South Africa regarding its patent law (Klug 2008, 2011).…”

Intellectual Property Monopolies: Towards a New Mercantilism

“…Given the generalized fear that a massive bio-terrorist attack was under preparation, Bayer immediately accepted to increase its production and to provide large quantities of Cipro at a much lower price, therefore dissuading the US government to use compulsory licensing. However, the threats from Canada and the US were not forgotten by developing countries, and the US finally had to accept the 2001 Doha Declaration on Public Health and the institutionalization of the 'public health exception' (Klug, 2008).…”

“…Indeed, as one can observe from the institutional history of IP, all major legal, institutional or semantic innovations that could favor the birth of a strong IP protection regime emerged from the Senate of the United States, heavily under the influence of corporate lobbies, primarily Pharma (Klug, 2008 This explanation for the rise of the current intellectual property regime however is at least partially inaccurate. As mentioned in the first section, the claim that the United States are entirely responsible for the building of the international law of IP is a caricature of reality.…”

Pharmaceutical companies and access to medicines – social integration and ethical CSR resolution of a global public choice problem

“…The US government also placed South Africa on a watch list of countries that deny adequate and effective protection or fair and equitable market access for intellectual property. 7 PhRMA's lawsuit and the US government's position encouraged counter legal responses and sustained global consciousness about the negative consequences of pharmaceutical patents on public health while catalysing a global access to the medicines campaign (Drahos 2007;Drahos and Mayne 2002, 248-50;Klug 2008).…”