The issue of access to antiretrovirals (ARV), the main drugs used in combination therapies to treat AIDS, has generated a debate whose importance is at once economic, political, and philosophical. The year 2001 marked a sea change in this regard, and we shall take it as our starting point to deconstruct the moral issues raised by the non-governmental organizations (NGOs) in response to the economic and legal arguments of the pharmaceutical laboratories. The African continent, which, with 70% of cases, is paying the heaviest price for the AIDS pandemic, will provide the prism through which these issues will be approached. The underlying context is one of African states whose capacity to appropriate these international dynamics ranges from strategic impotence to active engagement with the shifting registers of the fight against AIDS at the beginning of the new century. The ARVs were discovered in the mid-1990s and presented at the international conference on AIDS held in Vancouver (Canada) in 1996. In the months following their arrival on the market, HIV/AIDS-related mortality rates in Western hospitals fell by almost 80%. Patients in the developing countries (90% of those carrying the AIDS virus) were largely excluded from these combination therapies on grounds of cost. Sub-Saharan Africa began initiating agreements, either directly with the pharmaceutical companies (for example in Senegal), or in partnership with the laboratories, international organizations (such as UNAIDS), and international cooperation agencies (for example in Uganda and Ivory Coast). These agreements increased the accessibility of ARVs slightly, without affecting the exclusion of most patients in these countries (of the 4 million Africans whose clinical state means that treatment with ARVs is crucial to their survival, less than 1% are actually receiving them). This tragic situation was not widely reported in the media until 2001, when 39 pharmaceutical companies holding patents for antiretroviral drugs started court cases for infringement, stirring Me´ decins sans Frontiere` s (MSF) and other NGOs into action. Basing their cases on international agreements relating to intellectual property and patents (the Trade-Related Intellectual Property Rights agreement, or TRIPS), these 39 companies took the South African government to court for importing generic drugs and denounced the Brazilian government at the WTO for manufacturing illegal copies of patented drugs. This action, which was, from one point of view, a juridical response relating to respect for international trade laws, simultaneously proved to be a strategic error and the source of unprecedented international mobilization against both the lawsuits and the pharmaceutical laboratories. It was a strategic error because the resulting outcry brought issues of morality into the conduct of capitalism, so that the companies felt obliged to drop their lawsuits. In this light it is important to understand ‘‘public health as a watchdog for globalization’’ (Dixneuf 2003, pp. 213–225). The issue of AIDS in Africa provides a particular prism for international relations seen in the context of a medicine-related confrontation in which the view of medicines as ‘‘global public goods’’ is in conflict with the investments and profits of the pharmaceutical industry. Between the two the legal issue of the protection of patents and the ethical imperative of danger to the lives of millions of African patients intertwine with questions of politics.
The present essay aims to place all these elements in perspective and to describe the different, even parallel contingencies that now set ‘‘law’’ against ‘‘morality’’ in the context of AIDS in Africa.
The pharmaceutical laboratories reacted on two fronts. First they had to regroup and collectively offer price reductions to certain governments (including Senegal and Cameroon), which had been tempted by generic drugs from the South (notably India). So five laboratories joined forces to counter this competition. The other facet of the reaction – in both the literal and figurative senses – invoked the culturalist argument formulated by the Administrator of USAID in 2001 (‘‘Many people in Africa have never seen a clock or a watch their entire lives’’ so are not able to follow intense treatment regimes1) and arguments about structures (‘‘the obsolescence or non-existence of treatment structures in Africa means combination therapies cannot be used’’) and hence economics (‘‘waste of money’’). The international NGOs responded to these arguments in two ways. First they sought to demonstrate that they were false : for example, MSF set up pilot projects providing combination therapy almost free of charge, to prove that the major obstacle was the cost of the drugs. The ways in which this treatment was provided, said to be supportive of patients, are themselves innovative and worthy of analysis. Secondly, the NGOs criticized the profits made by the pharmaceutical companies, noting for example that, compared to production costs, the profit margins of the laboratories represented over 90% of sale price. These arguments against the laboratories were backed up with the symbolism of slogans before the antiglobalization movement’s current challenge to the very principle of patents in the name of moral principles, in this case universal access to scientific and medical discoveries.
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