Consensus-seeking, distrust and rhetorical entrapment: The WTO decision on access to medicines
| Author | E. Richard Gold,Jean-Frédéric Morin |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| DOI | 10.1177/1354066110366054 |
| Subject Matter | Articles |
European Journal of
International Relations
16(4) 563–587
© The Author(s) 2010
Reprints and permissions: sagepub.
co.uk/journalsPermissions.nav
DOI: 10.1177/1354066110366054
ejt.sagepub.com
Article
Corresponding author:
Jean-Frédéric Morin, Science Politique, Université libre de Bruxelles, 39 av Roosevelt, CP 172, 1050,
Brussels, Belgium.
Email: jmorin@ulb.ac.be
Consensus-seeking, distrust
and rhetorical entrapment:
The WTO decision on access
to medicines
Jean-Frédéric Morin
Université libre de Bruxelles, Belgium
E. Richard Gold
McGill University, Canada
Abstract
While the WTO secretariat, key delegations, several NGOs, and industry publicly present
the 30 August 2003 WTO Decision as an attempt to reconcile intellectual property with
access to medicines, our research shows otherwise. We draw on qualitative analyses of
54 interviews and a lexicometric analysis of press releases to show that their enthusiastic
public statements contrast deeply with their internal, cynical beliefs. Most of these
actors not only consider the WTO Decision to be fundamentally flawed but claim to
have known this prior to its adoption. We argue that a procedural norm of consensus-
seeking impeded traditional bargaining over this sensitive issue and that distrust
among participants hindered truth-seeking deliberation. Caught between strategic
and communicative actions, state and non-state actors found themselves trapped in
their own rhetoric of reconciling intellectual property with access to medicines. They
realized that the appearance of a solution, rather than a functional solution, provided
the only realistic outcome to a fruitless and publicly damaging continuation of debate.
From a theoretical perspective, this case study sheds a new light on the gray zone
between rational choice theory and constructivism, where both discourse and strategies
matter. From an empirical perspective, it illustrates the risk of seeking consensus within
international regimes when the procedural norm of consensus coexists with a high level
of distrust.
Keywords
discourse, HIV/AIDS, intellectual property rights, norms, rhetoric
564 European Journal of International Relations 16(4)
Introduction
Gabriel García Márquez’s novel, Chronicle of a Death Foretold, tells the story of a tragic
murder in a remote tropical community. While the townspeople were well aware of the
murderer’s intention, each had his or her own reason not to prevent this predictable
crime, creating an odd consensual collusion. One could argue that the title of this novel
could as easily describe the story of the WTO Decision on generic drug exports. Actors
consensually agreed to a mechanism that they knew would not work but that would save
their reputations and advantageously position them for the next round of negotiations.
This alternative Chronicle of a Death Foretold begins with the signature of the
Doha Declaration on the TRIPs Agreement and Public Health in November 2001. The
Declaration called for international negotiations to address the need of some countries to
import generic medicines produced under compulsory licensing. At the time, the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) provided
that compulsory licenses ‘shall be authorized predominantly for the supply of the domes-
tic market.’1 Thus, if a developing country did not possess sufficient manufacturing
capacity to make a locally issued compulsory license practicable, TRIPs prevented it
from importing drugs produced under compulsory licenses in another country. With the
Doha Declaration, WTO members formally agreed that this situation was unacceptable
and committed themselves to find an ‘expeditious solution.’
It was not until the summer of 2003 that Member States reached what WTO Director,
Supachai Panitchpakdi, called ‘an historic agreement.’2 The so-called 30 August 2003
Decision defined conditions under which a country could export pharmaceutical prod-
ucts to another under a compulsory license. In December 2005, WTO members trans-
lated this Decision into a permanent amendment to the TRIPs agreement, making it the
first WTO agreement to be amended. The adopted mechanism received praise from
around the world, including from rock star Bono, UNICEF, the United States Trade
Representative, and Pfizer. Some NGOs expressed cautious skepticism over the Decision
but nevertheless soon lobbied for its implementation in domestic legislation.
The effectiveness of the global mechanism, however, proved disappointing. The early
literature, published before the adoption of the final Decision and the first attempts at its
implementation, presents the Doha Declaration as a breakthrough and credited NGOs for
bringing public health concerns to a trade forum (Hoen, 2002; Sell and Prakash, 2004).
Even some later work treated the Declaration as a victory for NGOs, but with the warn-
ing that ‘at the time of writing, it was too early to assess further any net effects of this
case and later events’ (Odell and Sell, 2006: 106). Nine years after the Doha Declaration,
the conclusion has become clear that the WTO Decision actually changed little. In the
seven years following its implementation, only one compulsory license has ever been
issued under this mechanism. That was between Canada and Rwanda, as exporter and
importer respectively, of 260,000 packs of the HIV/AIDS combination therapy. The
Canadian company involved stated that ‘it’s almost a miracle Rwanda may be getting
any drugs under this law.’3 Meanwhile, most other developing countries continue to lack
safe and affordable pharmaceutical products. ‘We have failed lamentably,’ concluded
Stephen Lewis, the former United Nations Special Envoy for HIV/AIDS in Africa.4
More recent studies provide three explanations for the failure of the WTO mechanism
to increase access to medicines in developing countries (Baker, 2004; Gopakumar, 2004;
To continue reading
Request your trial