Three Ways of Looking at a Blackbird: Political, Legal, and Institutional Perspectives on Pharmaceutical Patents and Access to Medicines

Abstract

Since the negotiations leading to the adoption of the TRIPS Agreement and throughout the recent proliferation of TRIPS-Plus provisions, scholars, policymakers, and activists alike have been sharply divided between those who saw pharmaceutical patents as a tool for promoting of technological progress and those who denounced their adverse impact on access to affordable medicines worldwide. This article seeks to reconstruct that debate by focusing on three of its interlocking dimensions and the narratives built around them. First, the opposition between intellectual property and public health may be seen as part of a political and diplomatic struggle between developed and developing countries. Second, it may be construed as a normative conflict between two policy objectives equally recognized and protected under international law (in particular under trade rules and human rights rules, respectively). Third, it may reflect a clash between the discourses and the deeply ingrained rationalities of different international institutions, such as the WTO, the WHO, and the UN human rights bodies. Focusing on any of these three dimensions frames our understanding of a crucial global issue and shapes our vocabulary to address it. However, each narrative also has its own blind spots and obscures as much as it reveals.