The U.S. Posture on Global Access to Medication & the Case for Change

Abstract

The TRIPS Waiver sought by India and South Africa features as the hot button issue of 2021. This paper enables that discussion by empirically showcasing the traditional role of the United States Trade Representative (USTR) on the question of pharmaceutical patents.

The USTR is authorized by statute to identify and pursue countries perceived as denying adequate and effective protection of intellectual property (IP) rights and/or fair and equitable market access to U.S. industries or entities that rely on IP protection. The paper examines whether the allegations of poorer nations that repeatedly, the changes sought by the US have often deterred other member nations from using negotiated trade flexibilities. In doing so, this paper highlights that, it is a fact that the USTR has historically exerted pressure - often, unilaterally - on other countries in a manner that violates the spirit of the multilateral dispute settlement mechanism of the World Trade Organization. The paper showcases the number of times the USTR has tended to focus its allegations of violations on pharmaceuticals, seemingly only based on the rhetoric from PhRMA. In fact, once a country is an identified violator, the USTR has tended towards applying direct and indirect pressure through trade negotiations and preference systems in order to win policy changes favoring the U.S. intellectual property owners. The unfortunate reality, this paper concludes , is that traditionally many such changes sought by the USTR lack due consideration of local realities, and has not truly allowed allies to use negotiated TRIPS- flexibilities meant to provide access to medications in the targeted nations.

The numbers in this paper speaks for itself as the US considers whether the TRIPS Waiver should be supported. The adverse impact of COVID-19 on trade necessitates us to factually asses local realities as well as the role of the US as a global leader to prioritize GLOBAL public health as a means to restore trade.

Keywords: trade, intellectual property, patents, USTR, TRIPS, TRIPS-Flexibilities, TRIPS Waiver, India, South Africa

JEL Classification: 114, F14, F01, F02