Access to Medicines and the Rhetoric of Responsibility

57

There is, as yet, no cure or vaccine forHIV/AIDS. The only life-prolongingtreatment available is antiretroviral

(ARV) therapy. The World Health Organiza-tion (WHO) estimates, however, that lessthan 5 percent of those who require treat-ment in developing countries currently enjoyaccess to these medicines. In Africa fewerthan 50,000 people currently receive ARVtherapy, which represents less than 2 percentof the people in need.3 These facts have elicit-ed strongly divergent reactions, and viewsabout the appropriate response to this crisishave varied widely. Some have called for permitting developing countries to makeindependent policy on patent laws, henceenabling them to produce or purchase low-cost generic drugs without censure. Othershave asked pharmaceutical companies to selltheir medicines at the cost of production to low-income countries. Still others havedemanded substantial contributions to aglobal fund that would purchase the neces-

sary drugs from pharmaceutical companiesat the market price.

While disagreements about policies andpractices are sometimes purely empirical,withadvocates of opposing positions differing onlyon the best means to achieve shared aims, theintensity of the debate concerning access tomedicines, and the heated rhetoric with which

Access to Medicines and the Rhetoric of Responsibility

Christian Barry and Kate Raworth*

The story of the decade, and perhaps the century, has finally made it to the front pages:millions of people who could be saved are dying from AIDS. The reason for their unnecessary,premature, and often agonizing deaths is now becoming clear: it is pure, unadulterated greed.

––Mark Weisbrot Co-Director of the Center for Economic and Policy Research1

Virtually all African countries have centralized government drug import and distributioncenters, and most of them are broken or corrupted…HIV in Africa is contracted and spreadthrough a web of causations—economic, developmental, social—and when you start focusing on a single solution, like anti-retrovirals, you fail.

—Josef Decosas Director of the Southern Africa AIDS Training Program2

* For discussions of earlier versions of this article, we aregrateful to participants in the workshops, “Public Healthand International Justice,”Carnegie Council, and “Assign-ing Duties to Institutions: Debating Hard Cases,” BritishAcademy Network on Ethics, Institutions, and Interna-tional Relations. Special thanks are owed to Paige Arthur,Robert Bach, Carolyn Deere, Ludmila Palazzo, ThomasPogge, Joel Rosenthal, and Anthony So for their helpfulwritten comments, and to Morgan Stoffregen and LydiaTomitova for their valuable research assistance. The viewsexpressed in this paper are those of the authors alone, andnot of the institutions with which they are affiliated.1 Mark Weisbrot, “A Prescription for Scandal,” Balti-more Sun, March 21, 2001, p. A17.2 Quoted in Thomas L. Friedman, “It Takes A Village,”New York Times, April 21, 2001, p. A25.3 Abigail Zuger, “Beyond Temporary Miracles,” NewYork Times, July 16, 2002, p. F5.

Repinted from Ethics & International Affairs 16, no. 2.© 2002 by Carnegie Council on Ethics and International Affairs.

it is often conducted, suggests that it may berooted in deeper disagreements of value.

It is not obvious, however, what disagree-ments of value are at stake in this debate. Mostparticipants agree that the current situation ismorally unacceptable and that “somethingmust be done” to remedy it. But advocateshave seldom articulated their underlying jus-tifications for why this situation is unaccept-able, and they have thus provided little basisfor determining whether or not their chosenpolicies would constitute progress.

In a recent article in the New York Review ofBooks, for instance, Helen Epstein and LincolnChen claim, “Patenting drugs that could, ifthey were cheaply available, extend the livesand postpone the suffering of thousands oreven millions of poor people in developingcountries raises serious ethical concerns.”4 Theauthors then leave readers to figure out forthemselves what, more precisely, these seriousconcerns are and what practical significancethey have. This is understandable in one sense,for who could deny that there is somethingbad about suffering on such a scale? The prob-lem is that judgments about the “unaccept-ability” of the current situation must betranslated into obligations before they canhelp guide action. And precisely because theyare only indirectly action-guiding, theseclaims are often put forth in unclear and eva-sive ways. The “right to health” is sometimesinvoked in this context—but without beingbacked up by rigorous analysis of who bearscounterpart obligations for its realization.5

When the rhetoric in a debate surroundingan important practical dilemma is either heat-ed or evasive (and often both), participantsmay accuse one another of bad faith or naivetéabout the facts of the case. They are also likelyto invoke principles that support their side ofthe argument without thinking through theirargument’s broader implications—or perhapspurposefully ignoring them. These tendencies

make it more difficult to identify correctly thetrue nature of the disagreements—and hencethe evidence and argumentation that could berelevant to resolving them.

By analyzing the statements of scholars,public officials, activist organizations, and pri-vate sector representatives, each of whom mayendorse very different policy recommenda-tions on access to HIV/AIDS drugs, we haveidentified and created a typology of the differ-ent sources of disagreement in the debate. Weconclude that the central disagreements con-cerning access to medicines arise from com-peting understandings of how responsibilitiesfor bringing remedy to hardships should beallocated to different agents and institutions.6

A central lesson that emerges from our analy-sis is that thinking about “health equity” mustengage more honestly with the difficult ques-tion of how responsibilities for bringing rem-edy to health crises should be allocated incomplex social contexts.7

58 Christian Barry and Kate Raworth

4 Helen Epstein and Lincoln Chen, “Can AIDS BeStopped?” New York Review of Books, March 14, 2002,pp. 29–31.5 For a discussion of the limitations of the rights idiomwith respect to health, see Onora O’Neill’s contributionto this section,“Public Health or Clinical Ethics: Think-ing beyond Borders,” pp. 35–45.6 It is, of course, sometimes the case that public state-ments are made dishonestly, inconsistently, and in badfaith. Our analysis nevertheless takes these statementsat face value. We have done so not only because thisdebate is already characterized by a lack of trust amongparticipants, but also because identifying the broadercommitments that are often implicit in public state-ments may help to identify their authors’ dishonesty,inconsistency, and bad faith.7 Indeed, the debate is not rooted in disagreements thathave been the focus of much recent writing on healthequity, such as: the legitimate scope of moral concern(e.g., all persons, groups, compatriots, or communitymembers); whether we should focus on access to health-care resources, health outcomes, or opportunities forhealth; and distributive considerations (e.g., whetherone ought to use sum-ranking, maximin, or some indi-cator of inequality as an interpersonal aggregation func-tion for assessing the fairness the current situation).

The key area of dispute, it seems, con-cerns the question of who bears (to useDavid Miller’s phrase) “remedial responsi-bilities” with respect to the crisis in access tomedicines. “To be remedially responsiblefor a bad situation” means, as Miller puts it,“to have a special obligation to put the bad situation right, in other words, to bepicked out, either individually or along withothers, as having a responsibility toward the deprived or suffering party that is not shared equally among all agents.”8

Although all the participants in this debateagree that someone is morally required toprovide the resources to lessen significantlythe suffering that this crisis has caused, theydiffer in their understanding of which par-ticular agent or agents are under an obliga-tion to improve the situation.

Three disagreements concerning remedialresponsibilities seem to be at stake in thedebate. The first concerns the character ofremedial responsibilities: whether what isneeded is a change in the behavior of indi-vidual or collective agents or, instead, achange in the framework of rules and institu-tions within which these agents act. The sec-ond is due to differences over the principlesthat should be used—and what weight eachshould be given—in allocating these respon-sibilities to various agents.The third concernsdisagreements about how the appropriateprinciples should be applied.

DISAGREEMENT 1: THE CHARACTER OF REMEDIALRESPONSIBILITIES

This disagreement concerns whether theidentified remedial responsibilities are conceived as moral responsibilities or as responsibilities of justice. Moral remedialresponsibilities—whether to refrain fromharming, to care for those with whom one

has special relationships, or to promote gen-eral well-being—are held directly to otheragents. Remedial responsibilities of jus-tice––such as those to institute and upholdjust institutions, to ensure that they arecomplied with, or to bring remedy to hard-ships when they are lacking––are held onlyindirectly to other agents insofar as they areaffected by social rules.

Moral Remedial ResponsibilitiesAppeals to moral remedial responsibilitiesdo not attempt to address the structure ofsocial institutions but instead call onagents to change their behavior within it.In the case of access to HIV/AIDS drugs,pharmaceutical companies are often calledupon to change their practices in order to improve the distribution of benefits andburdens that the prevailing market struc-ture engenders. Such appeals do not question the basis of these companies’entitlements, but rather the way they con-duct themselves toward others within thisframework of entitlements. Such appealstend to treat corporations as comparableto individual moral agents, attributing tothem responsibilities to promote a betterdistribution of population health and toprevent deaths where possible. They call,in effect, for the redistribution of assets onthe basis of these principles.9

The pharmaceutical industry has empha-sized its drug donation programs (for otherdisease areas) as the answer to any questionsabout their moral responsibilities:

Through a number of philanthropic programs,

ACCESS TO MEDICINES AND THE RHETORIC OF RESPONSIBILITY 59

8 See David Miller,“Distributing Responsibilities,” Jour-nal of Political Philosophy 9, no. 4 (2001), pp. 453–71.9 See, e.g., Paul G. Harris and Patricia Siplon, “Interna-tional Obligation and Human Health: EvolvingResponses to HIV/AIDS,” Ethics & International Affairs15, no. 2 (2001), pp. 29–54.


the pharmaceutical industry has demonstrated

its commitment to help relieve the pain and

suffering of patients in need around the world.

—Pharmaceutical Research and Manufacturers

of America (PhRMA)10

Some have appealed to pharmaceuticalcompanies on these grounds simply toextend their drug donation programs, or tolower prices for the needy to at least themarginal cost of production—from the$12,000 offered in December 2000 to the$350 (and below) now proven possible bythe generics firms. Other ideas for fulfillingmoral obligations are more elaborate,and propose challenges to the prevailingintellectual property regime, the Trade-Related Aspects of Intellectual PropertyRights (TRIPS) agreement. On this score,observers have asked pharmaceutical com-panies to issue voluntary licenses to gener-ics producers, so that these firms mightproduce cheap, life-saving drugs withoutfear of penalty under the TRIPS regime:

We urge all drug companies to issue non-

exclusive voluntary licenses that allow

generic antiretroviral drugs to be produced in

and imported into any poor country.

—Zackie Achmat, Treatment Access Campaign,

South Africa11

They have also asked pharmaceutical compa-nies to drop legal cases against governmentsthat have sought to exploit clauses in theTRIPS agreement that enable governments toissue compulsory licenses to generics compa-nies to make use of patented knowledge inextraordinary circumstances (such as in casesof extreme public-health risks or nationalemergencies) when the patent holder hasrefused to grant a voluntary license to use thepatent. This appeal was successful last year inSouth Africa, where thirty-nine major drug

manufacturers dropped their suit underinternational public pressure.

Pharmaceutical companies have beendefended against claims that they are neglect-ing their moral remedial responsibilities inseveral ways. First, it has been argued thatthey are merely doing what all companies do,which is compete to attract shareholders andsurvive in the highly competitive global mar-ket. If the outcomes of that competition fly inthe face of public interest, it is claimed, thenit is the rules governing competition thatneed to be changed—and that is a matter ofpublic policy, not one of reforming thebehavior of individual firms and industries:

We need rules which are fair and transparent

and rules which do not hamper our ability to

sell our medicines because a local industry

has failed to stay modern. — Shannon

Herzfeld, Senior Vice President for Interna-

tional Affairs, PhRMA12

Second, some have invoked a principle thatThomas Pogge calls the “sucker exemption.”13

Pharmaceutical firms behaving within theconstraints of the market channel theirresources to research on diseases affectingaffluent populations, located mostly in devel-oped countries, because if they fail to do sothey will not survive for very long and will be

10 Pharmaceutical Research and Manufacturers ofAmerica, Pharmaceutical Industry Primer 2001: A Century of Progress (Washington, D.C.: PharmaceuticalResearch and Manufacturers of America, 2001),p. 10; available at www.phrma.org/publications/01-192PhRMAdProfPrimer.pdf.11 Zackie Achmat, “Commentary: Most South AfricansCannot Afford Anti-HIV Drugs,” British Medical Journal 324, no. 7331 (2002), pp. 214–18.12 Quoted in Gumisai Mutume “Africa Shuns U.S. MoveAllowing Access to Cheaper AIDS Drugs,” Inter PressService, July 26, 2000; available at www.aegis.com/news/ips/2000/IP000713.html.13 See Thomas W. Pogge, World Poverty and HumanRights (Cambridge: Polity Press, 2002), pp. 127–29.

replaced by firms that are eager to do so. Anyparticular corporation can reasonably ques-tion why it should constrain itself by moralvalues if it has little assurance that others willfollow suit. Why should it, or indeed, thepharmaceutical industry as a whole bemade the “sucker”—with others profitingfrom their imprudent moralizing? Similar-ly, governments may reasonably claim thatendorsing policies that run contrary to theinterests of the pharmaceutical and otherindustries dependent on intellectual prop-erty might cause these companies to relo-cate overseas, robbing them of muchneeded jobs and capital.

Third, it has been pointed out thatpharmaceutical companies have partici-pated in drug donations and have initiat-ed price cuts—only to receive criticismrather than praise for their “good corpo-rate citizenship.” Finally, they have beendefended on the grounds that moral reme-dial responsibilities in the absence ofany special connection are, in fact, quitelimited.14 That they have been demonizedand chastised is due, on this account, tothe fact that their enormous wealth andhigh profit margins make them politicallyconvenient targets:

In the face of this, there is the duty to do all

we possibly can. But there’s also an impera-

tive not to engage in rituals of easy blame,

or to attempt something that cannot be real-

istically achieved, or to demonize those

who are a critical part of the solution.

—Andrew Sullivan, New Republic15

It is not only the pharmaceutical compa-nies, however, that may have moral remedi-al responsibilities. The governments ofdeveloped nations have been asked to desistfrom threats to take developing countrygovernments to the WTO dispute resolu-tion mechanism when they make use of the

option of compulsory licensing.16 Likewise,many have backed Kofi Annan’s call to thegovernments of wealthy nations to provideadequate funding for a Global AIDS Fund:

Considering the degree of suffering that

would be reduced (by larger contributions to

the Global Fund), this seems an infinitesimal

sacrifice for Americans. —Paul G. Harris and

Patricia Siplon, Ethics & International Affairs17

These appeals have not been terribly per-suasive, however, to many of those living indeveloped nations who have put forwardprinciples and pragmatic reasons forrejecting such increases in aid. In a recentpoll conducted by the Washington Post,only 40 percent of Americans felt that pro-vision of more assistance would help rem-edy the situation.18 And many have arguedthat assigning responsibilities to developedcountries would only serve to bail out irre-sponsible national policies and to reward


14 See, for example, Dan W. Brock, “Some Questionsabout the Moral Responsibilities of Drug Companies inDeveloping Countries,” Developing World Bioethics 1,no. 1 (2001), pp. 33–37.15 Andrew Sullivan, “Profit of Doom?” New Republic,March 26, 2001; available at www.tnr.com/032601/trb032601.html.16 More significant, perhaps, is the threat of being puton the Special 301 watch list of countries whose tradepractices the United States dislikes and is consideringplacing under sanctions. Several authors have claimedthat it is bilateral pressures outside the WTO that havebeen most constraining to the trade-related policies ofdeveloping countries. See Carlos Correa, “The TRIPSAgreement: How Much Room to Maneuver?” Journal ofHuman Development 2, no. 1 (2001); and Michael P.Ryan, Knowledge Diplomacy: Global Competition andthe Politics of Intellectual Property (Washington, D.C.:Brookings Institution Press, 1998).17 Harris and Siplon, “International Obligation andHuman Health,” p. 43.18 Richard Morin and Claudia Deane, “Americans onAIDS in Africa: Help and Discipline Needed,” Washing-ton Post, July 6, 2002, p. A3.

unhealthy individual behavior—thus con-stituting a significant moral hazard.

Remedial Responsibilities of JusticeAppeals to remedial responsibilities of jus-tice, on the other hand, call for agents toremedy the crisis by restructuring socialinstitutions, such as by changing the dura-tion and scope of patent rights or other mar-ket rules. Agents are addressed insofar asthey have played, currently play, or couldpotentially play a significant role in theshaping of rules and institutions that have,are, or will contribute to the inaccessibilityof essential medicines in the developingworld. When fair rules exist, agents may alsobear remedial responsibilities of justice toensure that they are sufficiently respectedand enforced. These appeals ask, then, for arevision of the entitlement-producingprocesses that have strongly influenced theaccessibility of medicines in the first place.

Remedial responsibilities of justice havebecome a main focus of the debate because ofan increasing recognition that agents like thepharmaceutical companies are highly influ-ential in the process of setting the rules and,hence,might bear obligations to reform them.This duality of roles—as both actors withinthe rules and framers of the rules—is particu-larly clear in the case of the TRIPS agreement.Pharmaceutical company executives oftenaccompanied national delegations in thenegotiations that created the agreement, andthe influence of specific companies in thisprocess has been well documented.19 Whileeach particular company or government maylegitimately claim that unilateral efforts tocreate access to HIV/AIDS drugs will be self-defeating, taken together they cannot so easi-ly claim to be powerless to reshape intellectualproperty and other rules.

Many civil-society organizations haveasserted that appeals to corporate and state

beneficence will be of limited value, and thatonly through reform of the intellectualproperty system will an acceptable and sus-tainable solution be achieved. In fact, somehave pointedly rejected programs such asdrug donations not only because of theirpurported lack of effectiveness, but alsobecause they inaccurately characterize the nature of the responsibilities of thepharmaceutical companies and developedcountries. They fear that gestures such asdrug donations or interest-free loans fordrug purchases may serve to preempt morefundamental institutional reform:

In effect, corporations in the pharmaceutical

sector are offering islands of philanthropy,

while promoting a global patents system

which would enhance their profitability,

but could also consign millions to unnecessary

suffering. —Oxfam20

Others appeal to moral responsibilities,invoking responsibilities of justice only ifthey prove ineffective:

If industry cooperation is not enough, or not

forthcoming on a general or reliable basis, the

rules of international trade involving access to

essential medicines should be applied in a


19 See Oxfam’s report on GlaxoSmithKline, which doc-uments meetings company executives attended as partof the TRIPS negotiation process, as well as personaland professional conflicts of interest of both govern-ment officials and corporate employees. Oxfam,“Dare to Lead: Public Health and Company Wealth”(Oxfam briefing paper, London, 2001); available atwww.oxfam.org.uk/cutthecost/downloads/dare.pdf.See also Ryan, Knowledge Diplomacy.20 Oxfam,“Patent Injustice: How the World Trade RulesThreaten the Health of Poor People” (Oxfam briefingpaper, London, 2001); available at www.oxfam.org.uk/cutthecost/downloads/patent.pdf.21 Commission on Macroeconomics and Health,Macroeconomics and Health: Investing in Health for Economic Development (Geneva: World Health Organi-zation, 2001); also available at www3.who.int/whosis/cmh/cmh_report/report.cfm?path=cmh,cmh_report&language=English.

manner that ensures the same results [of

near–production cost drugs available in low-

income countries]. —Jeffrey Sachs et al.21

Both the pharmaceutical industry and devel-oped country governments have replied thatdeeper institutional reforms are unneces-sary. They stress instead the potential ofgood-faith efforts to achieve an acceptableoutcome through collective and voluntarydonations and price-cutting. They argue, inshort, that the current system is just, and thatthey have already identified effective meansof discharging their moral remedial respon-sibilities. The pharmaceutical companieshave thus acknowledged their collective rolein framing the rules but assert that theirinfluence is a purely beneficial one:

Whether we’re stimulating strong intellectual

property protection or boosting freer markets

overseas or opposing legislation that would

hurt the industry’s research for cures—we’re

working to make good things happen and

to defeat bad policies that would hurt patients

by discouraging innovation. —PhRMA22

Appeals to responsibilities of justicecould potentially ask for the reform of rulesat many different levels. Those rules cur-rently governing intellectual propertyrights (IPRs), for example, are couchedwithin the assumptions of the broaderframework of global market capitalism—which itself depends upon a broaderframework of personal property rights andstate sovereignty.

DISAGREEMENT 2: PRINCIPLES FOR ALLOCATINGREMEDIAL RESPONSIBILITY

By what principles should responsibilities—whether of morality or of justice—to improveaccess to medicines be allocated to differentagents? Three approaches feature repeatedlyin the debate. The first appeals to agents’

responsibilities based on their connectednesswith those suffering. The second allocatesresponsibilities to agents on the basis of theircontribution to the current crisis. The thirdclaims that remedial responsibilities ought tobe allocated according to the capacity of dif-ferent agents to discharge them.

Connectedness The claim is that remedial responsibilitiesshould be allocated on the basis of connect-edness, whether this is based in joint activities, voluntary commitments, sharedinstitutions, membership in solidaristiccommunities, or shared histories. The idea is that those who are connected in these ways have especially strong independ-ent reasons for bringing remedy to oneanother’s hardships.23 According to a veryexpansive view of connectedness, sharedhumanity is sufficient to ground the obliga-tions, where possible, to remedy the hard-ships of others. In our world, no particularperson is uniquely picked out to remedyhardships of this magnitude, because all areconnected in this ethically significant way:

In many occupied nations during World War II,

the Nazis ordered Jews to wear a yellow star, as

prelude to their destruction. But not in Den-

mark. According to legend, the Danish king,

Christian X, threatened that, if Danish Jews

were to wear the star, he would, too. The story

is almost certainly a myth, but its meaning is

not. . . .“If some Danes are under siege,” the

story means to say, “then all Danes are under


22 Alan F. Holmer, “President’s Message,” in PhRMA2001–2002 Annual Report (Washington, D.C.: Pharma-ceutical Research and Manufacturers of America,2002), p. 6; available at www.phrma.org/publications/publications/annual2001/phrma_annreport2001.pdf.23 Miller refers to this as the “community” principle.Miller, “Distributing Responsibilities,” p. 462.24 Donald M. Berwick, “We All Have AIDS,” Washing-ton Post, June 26, 2001, p. A17.


siege. So, for now, we are all Jews.”So now we all

have AIDS. —Donald M. Berwick, President and

CEO, Institute for Healthcare Improvements24

Some disagree, justifying their view bydemonstrating the lack of a sufficient con-nection with those suffering from the crisis:

One e-mail correspondent asked why he

should care about AIDS in Africa.“What does

this have to do with me?” he asked. “I deeply

believe we are one world,” I responded, “and

all humankind are connected.” He replied

instantly with a further question, which

haunts me still. “Where did you get that

idea?” he asked. —Member of the U.S. Public25

Narrower variants of the connectedness principle are more commonly appealed to,assigning weighty special responsibilities tointimates, associates, and to those with whomone stands in relations of reciprocity becauseof participation in joint cooperative systems.The understanding of connectedness that istaken to be most relevant concerning accessto medicines stresses the moral significanceof membership within states. That is, remedi-al responsibilities are judged to fall directly on states. While we may bear some responsi-bility toward those who live in other states to“aid” them and to ease their burdens—pri-mary responsibility for remedying hardshipsis seen to fall on their own governments.Supranational institutions, other states, andnonstate actors are correspondingly con-ceived as playing only a supporting role tostates, enabling them to meet their ownresponsibilities to their residents.

Special responsibilities that are based onconnectedness are also commonly invokedby citizens in developed countries to shieldthem and their governments from theclaims of foreigners:

When I mention this legislation [which would

provide $938 million for AIDS prevention,

education, and awareness programs, and $100

million for pilot AIDS treatment programs] to

Republican colleagues, they wonder why I’m

doing it. They say we have domestic problems.

––U.S. Rep. Henry Hyde (R-Ill.)26

Critics of this view have suggested that assign-ing remedial responsibility to states for thecrisis fails to acknowledge adequately the lim-ited capacities of some to fulfill them, evenwith substantial support from outsiders. Theycan reasonably argue, moreover, that since therich tend to be more strongly connected to therich, and the poor more strongly connected tothe poor, this principle for allocating respon-sibilities will systematically tend to favor therich.27 Perhaps most important, they haveasserted that the connections of greatestmoral importance are formed when personscome to coexist under shared rules and insti-tutions that affect the life prospects of each.

ContributionThis principle maintains that agents are to beheld remedially responsible for situationswhen, and to the extent that, they have con-tributed to bringing those situations about.This principle finds support in what SamuelScheffler has recently called the “common-sense” view that “individuals are thought tobe more responsible for what they do thanfor what they merely fail to prevent.”28 Whileconduct and social rules can plausibly beregarded as in some sense contributing todeprivations in a variety of different ways,the most direct relationship of this kind iscausal—those who cause harm are certainlyviewed as contributing to it.

25 Quoted in Donald M. Berwick, “‘We All Have AIDS’:Case for Reducing the Cost of HIV Drugs to Zero,”British Medical Journal 324, no. 7331 (2002), pp. 214–18.26 John Diamond, “Hyde: Boost AIDS Funds acrossAfrica,” Chicago Tribune, June 7, 2001, p. 18.27 For discussion of this claim, see Samuel Scheffler,Boundaries and Allegiances (New York: Oxford Univer-sity Press, 2001), pp. 58, 85; and Pogge, World Povertyand Human Rights.28 Scheffler, Boundaries and Allegiances, p. 4

Some commentators invoke this principleto prove that contributory responsibilitydoes not lie with themselves, or with the poli-cies and practices of Western societies, bydemonstrating that sufficient causes lie else-where. Causal responsibility is sometimesassigned to the individual, in other cases tothe societies suffering from the crisis:

AIDS in most parts of the world is associated

with behavior . . . something over which

people have some control. —Member of the

U.S. Public29

In the middle of the global AIDS epidemic,

it is easy—although misguided—to assume

that the cost of drugs used to treat HIV and

AIDS is the primary barrier to people in

poor countries having greater access to such

drugs. In reality, the crux of this problem

is more fundamental. The main barrier

to access is the lack of adequately resourced

healthcare systems. —Richard Sykes, Chairman

of GlaxoSmithKline 30

Critics reply, in effect, that demonstratingthat one’s actions or policies are not the solecause of the crisis does not establish thatthey have not been a substantial cause:

Imagine that the poverty problem in Africa’s

poorest countries had already been some-

what alleviated via international aid. More

patents would have been sought, drug prices

would have increased, and aid money would

purchase fewer drugs than would have been

possible if it were not for intellectual proper-

ty protection. If this retrospective analysis is

correct, then it is misleading to claim that

poverty rather than patents poses barriers to

care. —Michael J. Selgelid and Udo Schuklenk,

University of Witwatersand, South Africa31

Indeed, even in legal contexts it is often thecase that establishing that agents are a sig-nificant cause of some deprivation is suffi-cient to hold them responsible for the wholedeprivation. These critics claim that whilepharmaceutical companies may not be

directly responsible for creating all the rele-vant background conditions for the crisis,their insistence that patents be valid world-wide is one of its important causes. Thesedisputes seem to depend on a substantialdisagreement about how causation shouldbe understood in social contexts. Some holdthat for actions or social rules to cause adeprivation they must be a necessary condi-tion of it, while others require merely thatthey be a substantial factor in or contributeto the outcome, which they often expressthrough locutions such as “blockingaccess,” or “standing in the way” 32:

At the very least, the developed world has

stood in the way of the developing world’s

efforts to solve AIDS and other health-

related problems in the most cost-effective

ways possible. —Paul G. Harris and Patricia

Siplon, Ethics & International Affairs 33

Capacity to ActAccording to this principle, capacity to bringremedy entails the responsibility to do so.The claim is that some agents have the


29 Berwick,“‘We All Have AIDS’: Case for Reducing theCost of HIV Drugs to Zero,” p. 215.30 Richard Sykes, “Commentary: The Reality of Treat-ing HIV and AIDS in Poor Countries,” British MedicalJournal 324, no. 7331 (2002), p. 216.31 Michael J. Selgelid and Udo Schuklenk, “Letter to theEditor: Do Patents Prevent Access to Drugs for HIV inDeveloping Countries?” Journal of the American Med-ical Association 287, no. 7 (2002), p. 842. See also, Con-sumer Project on Technology, “Comment on theAttaran/Gillespie-White and PhRMA Surveys ofPatents on Antiretroviral Drugs in Africa,” October 17, 2001. Available at www.cptech.org/ip/health/africa/dopatentsmatterinafrica.html.32 For discussion, see A. M. Honoré, “Causation in theLaw,” in Stanford Online Encyclopedia of Philosophy(electronic edition, 2001), available at plato.stanford.edu/entries/causation-law; and Richard G. Wright “OnceMore into the Bramble Bush: Duty, Causal Contributionand the Extent of Legal Responsibility,” Vanderbilt LawReview 54, no. 3 (2001), pp.1071–132.33 Harris and Siplon, “International Obligation andHuman Health,” p. 34.


capacity to alleviate the situation throughtechnology and resources, and so theyshould. As David Miller puts it, its rationaleis, “If we want bad situations put right, weshould give responsibility to those who arebest placed to do the remedying.”34 Thisprinciple is purely forward-looking—allo-cating responsibility to whoever can bringremedy most efficiently, irrespective of theirconnectedness to the sufferer, or their role incausing the deprivation.

Estimates of the capacities of differentagents to bring remedy to a situation varysignificantly depending upon whether theyare understood individually or collectively.Some have defended themselves againstcharges of moral failures by stressing theirindividual incapacity to remedy the crisis:

It’s not entirely our responsibility. We can’t be

an NHS [National Health Service] for the

whole of Africa. —The Association of British

Pharmaceutical Industries35

Others have emphasized the collectivecapacities of different agents:

We are talking about a problem that if

addressed collectively by the world commu-

nity could be solved. Where the pharmaceut-

ical companies have responsibilities, they’ve

got to accept them. — British Chancellor

Gordon Brown36

The application of the capacity principlemust also be sensitive to the distinctionbetween capacities of agents to bring remedywithin the prevailing institutional frame-work (that is, to take on moral responsibili-ties), and their capacities to bring remedy byaltering the framework itself (that is, to takeon responsibilities of justice). As notedabove, the capacities of a single agent may bemore limited with respect to one of thesetasks than to the other.

PLAUSIBLE CONCEPTIONS of remedial respon-sibility will be likely to give some weight toeach of the principles discussed in this essay,and perhaps to others as well. One might, forinstance, grant some weight to principles thatallocate remedial responsibilities for depriva-tions to those who are thought to be “moral-ly responsible”for them, or to those who havebenefited from the unjust rules or conductthat have caused them. These principles canthus be understood in diverse ways, granteddifferent weights, and adopted in variouscombinations.37

DISAGREEMENT 3: THE APPLICATION OF THESE PRINCIPLES

Disagreement about the adequacy of con-ceptions of remedial responsibilities canonly be resolved by recourse to moral the-ory, and it is not within the scope of thispaper to defend any substantive view. Buteven in cases where there is rough agree-ment about the principles that should beused in assigning remedial responsibilitiesand the character of the responsibilitiesassigned, there may well be disagreementabout the conduct, policy, or institutionalchange that can achieve the desired out-

34 Miller,“Distributing Responsibilities,” pp. 460–61. AsMiller points out, views of this kind may be sensitiveboth to the efficiency of different agents and institu-tions in bringing remedy and to the cost to these agentsof doing so. See also Henry Shue, “Mediating Duties,”Ethics 98, no. 4 (1988), pp. 687–704.35 Faisal Islam and Nick Mathiason, “Brown:Let Africa Have Cheap Drugs,”Observer, online edition,April 15, 2001; available at www.observer.co.uk/business/story/0,6903,473190,00.html.36 Ibid.37 For discussion, see Miller, “Distributing Responsibil-ities”; and Christian Barry, “Global Justice: Aims,Arrangements, and Responsibilities,” in Toni Erskine,ed., Can Institutions Have Duties? (Basingstoke: Pal-grave, 2002).

comes. On the surface, the debate is oftenfocused on differences between economictheories that state various necessary andsufficient conditions for ensuring secureaccess to medicines. In addition to thisfamiliar domain of disagreement, thereare, however, deeper differences that areless explicitly debated. These include thetime frame and the scope of concern forassessing the policy proposal, the use ofcontradictory or inadequate data, and thestatus of claims about unprecedentedfuture scenarios.

Time Horizon and Scope of ConcernSome differences among policy recom-mendations arise out of the time horizonbeing considered or the specification ofwhose welfare is deemed important. Manycommentators emphasize, for example,the urgency of rectifying the immediatesituation (noting, for instance, the addi-tional number of people who will havecontracted AIDS by the time the readerhas finished reading his or her article).Importance is also placed on the immedi-ate actions that could be taken—the forceof which is often derived by demonstrat-ing the pharmaceutical companies’ imme-diate capacity to act:

Here is what the world needs: free anti-AIDS

medicines. . . Here is how it could happen:

the board chairs and executives of the world’s

leading drug companies decide to do it,

period. …They say, together, the same

thing. . .“We are taking one simple action

that will save millions and millions of lives.”

—Donald M. Berwick, President and CEO,

Institute for Healthcare Improvement 38

In contrast, others concentrate on long-term effects, emphasizing that many of theapparently straightforward solutions tohelp those currently suffering will harm the

prospects of future generations because ofthe disincentives that the recommendedpolicy will create:

Price controls and the wanton destruction of

intellectual property will do little to improve

public health. But they will reduce innovation.

The lag in HIV research and treatment will

condemn the African continent to deeper

darkness and death. —Robert M. Goldberg,

Wall Street Journal39

It may make a substantial difference in therecommended policies if the welfare offuture persons is included within a princi-ple’s scope of concern:

No nation would refuse to fight an invading

army because some expert argued it would

be cheaper to invest in defences against future

invasions. It is not a matter of prioritizing

lives now over lives tomorrow. —Peter Piot,

UNAIDS Executive Director40

Data Discrepancies Apparent disagreements over economictheory sometimes turn out to be disagree-ments about the facts of the case—and thisis true in the debate over the cost of researchand development of new drugs:

Discovering and developing new medicines

is expensive and increasingly time consum-

ing. . . . Today the cost of new drug discovery

and development is likely to be . . . $500–600

million or more. —PhRMA41

The industry’s claim that it costs US$500m to


38 Berwick, “We All Have AIDS,” p. A17.39 Robert M. Goldberg, “Fight AIDS with Reason, NotRhetoric,” Wall Street Journal, April 23, 2001, p. A22.40 Peter Piot, “Keeping the Promise” (speech given at the XIV International AIDS Conference, Barcelona,July 7, 2002); available at www.unaids.org/whatsnew/speeches/eng/2002/Piot070702Barcelona.html.41 PhRMA, Pharmaceutical Industry Primer 2001, p. 4.42 Oxfam, “Implausible Denial: Why the Drug Giants’Arguments on Patents Don’t Stack Up” (Oxfam Policy Paper, London, 2001); available at www.oxfam.org.uk/policy/papers/trips/trips2.htm.


bring a new drug to market is misleading, and

the significant contribution of public funding

is often glossed over. —Oxfam42

Lack of public access to industry data on thecosts of research and development lies at thecenter of this disagreement, and the highcosts of drug development are a key reasoncited by the companies against allowing theuse of compulsory licensing. Civil-societygroups have attempted to piece together thecosts of particular drugs, but such shadowestimates inevitably involve significant mar-gins of error that prevent the case frombeing confirmed one way or the other.

Short of demanding greater transparency,one way to prevent such ignorance of costsfrom falsely eliminating viable solutions is aproposal that creates an incentive for com-panies to reveal their costs in cases wheretheir profitability is truly threatened by com-pulsory licensing. Take the case of a patentholder wishing to challenge the issuance of acompulsory license in a developing countryon the grounds that it would undermine itsprofitability. Under this proposal, the burdenshould fall on the patent holder to providethe data of the cost of research and develop-ment that would show this to be the case.43

This type of mechanism could be used tomake policy even when disagreements aboutthe facts are unresolved, because it builds inincentives for companies to contest the use ofcompulsory licensing only in those cases inwhich it does potentially have negative con-sequences for long-term drug development.

Unprecedented Scenarios Some disagreements over the effect of pro-posed policies stem from different opin-ions about the extent to which futureoutcomes can be deduced from the evi-dence to date. Some commentators makevery broad deductions, claiming that the

theory holds for all countries, regardless oftheir stage of development:

Kenya’s decision to bring its patent law into

conformity with its international obligations

affirms the role of intellectual property as an

incentive to research and development of new

medicines and vaccines and as a necessary pre-

condition for investment in countries regard-

less of their stage of development. —PhRMA44

In opposition, others claim that such adeduction cannot be made because there isno equivalence between the current circum-stances of developing countries and the pastexperience of developed ones:

If at their stage of development the developed

countries had had to adhere to the minimum

standards set by TRIPS, it is most doubtful many

of them would have attained the levels of tech-

nology and industrialization that they achieved.

—Martin Khor, Third World Network45

In rebuttal to this, others imply that suchpredictions of harm have little weight, andthat if a country has not tried and tested apolicy, no plausible claims can be madeabout its expected negative consequences.

CONCLUSION

In closing, we would like to note threeimportant methodological issues that arelikely to confront the application of concep-tions of remedial responsibility for prob-lems concerning access to medicines.

43 James Love made this proposal in UNDP, HumanDevelopment Report 2001, p. 108.44 PhRMA, “PhRMA Statement on Kenya IndustrialProperty Bill for 2001” (mimeograph presented to KateRaworth by Susan Kling Finston, Assistant Vice Presi-dent for Intellectual Property and Middle East/AfricaAffairs, PhRMA, June 2001).45 Martin Khor, Rethinking IPRs and the TRIPS Agreement (working paper no. 1, International Prop-erty Rights Series, Third World Network, Penang,Malaysia, 2001), p. 5.

First, in many cases there may be uncer-tainty about which agents are picked out bya conception of remedial responsibility. Itmay be unclear, for instance, whether a par-ticular state, corporation, or domestic policyhas contributed to a deprivation, or whethertwo peoples are connected in an ethically sig-nificant way. In contexts of this kind, it is notobvious how these agents should understandtheir responsibilities. In criminal legal con-texts, high evidential thresholds are set forproof of contribution to harm, and the bur-den of proof is placed with the prosecution.But different standards and presumptions ofthe burden of proof may be reasonable fordifferent purposes. In civil law, for instance,a preponderance of evidence that an agenthas contributed to harming another can begrounds for attribution of remedial respon-sibility. In still other contexts the mere suspi-cion that one may have been involved incausing a severe deprivation could give onesufficient reason to act to remedy it. Howagents conceive of their remedial responsi-bilities in the presence of uncertainty maysignificantly affect their understanding ofwhat they owe others, and of the fairness ofdifferent policies, rules, and institutions thatcould potentially be adopted.

Second, assigning remedial responsibili-ties to real-world problems such as lack ofaccess to medicines must also take intoaccount the fact that those who should actoften will be unlikely to do so. If, forinstance, governments are deemed to haveprimary responsibility for securing theirpeoples’ access to medicines, but are unwill-ing or unable to do so, this will raise impor-tant questions such as whether (and which)others should step in to help or whether theburdens of these unmet responsibilitiesshould be left to the deprived. In such con-texts, many implicitly rely on an account ofwhat might be called “default responsibili-

ties,” which are held only when others fail tocomply with responsibilities that apply tothem.46 No single principle for allocatingremedial default responsibilities seemsobvious, yet how we conceive of them mayhave great practical significance.

Finally, assertions of remedial responsibil-ities of justice concerning access to medicineshave tended to focus almost exclusively onthe necessity of reforming the rules of intel-lectual property—taking as given the widerinstitutional framework. More extensivechallenges might claim, for example, thatinnovation can take place in a cooperativesystem (thereby challenging the necessity ofintellectual property rights at all) or that pub-lic research and development could play a fargreater role in the pharmaceutical sector(thereby proposing that the market needs tobe supplemented).

This focus is most apparent when the casefor the contributory responsibility of Westernpolicies and practices is made. This case tendsto rest almost exclusively either on the causalrole of pharmaceutical patents or on the fail-ure of developed countries to provide suffi-cient development “assistance” to the poor.Patent rules and international aid policies areisolated from broader causal processes, andthe debate avoids discussion of the many waysthat the West’s current and past policies mayhave contributed both to the crisis itself and tothe difficult conditions for institutions indeveloping countries trying to address the cri-sis.Foremost among historical injustices is theexistence of a colonial system, which effective-ly locked in developing countries as suppliers


46 This phrase is adapted from “default duties,”which wascoined by Henry Shue in another context. For related dis-cussions, see Liam Murphy, Moral Demands in Non-IdealTheory (New York: Oxford University Press, 2000).


of raw materials and suppressed the growth of their industries. More recent examplesinclude International Monetary Fund andWorld Bank policy conditionalities that led tocuts in public health spending (leaving coun-tries without the resources to deal with publichealth crises) and support for and loans tomilitary dictators, which contributed to debtcrises and high levels of corruption. On a stilldeeper level, one can reasonably question thefairness of different aspects of the interna-tional order: the fact that national boundariesdetermine ownership of, full control over,and exclusive entitlement to all benefits from land and natural resources, and that interna-tional agreements and institutions are shapedthrough a process of intergovernmental bar-gaining that strongly reflects the interests ofmore powerful countries.47

The contribution principle is narrowlyinterpreted for similar reasons. Imputingresponsibility for economic outcomes is usu-ally extremely difficult, given the multiplici-ty of actors and transactions involved. Whendeprivations are not clearly brought aboutby a single agent, or by a small number ofspecific agents, people often do not divideresponsibility for them among many personsbut rather stop making claims about respon-sibility altogether. One reason why the issueof lack of access to medicines has receivedgreat attention is that it represents aninstance where deprivations seem imputableto an easily identifiable class of agents: West-ern pharmaceutical companies. There mayalso be strategic reasons for this narrowness.Some may fear that focusing on the contri-bution of historical or deeper structural fac-tors to the current crisis will erode the clarityand appeal of their message. And others mayworry that raising such contested issues as

the relationship between past injustice andcurrent conditions might be so difficult thatit would only serve to divide advocates ofthe same policy. Moreover, many peopleengaged in the debate seem to believe thatthey can make strong cases for the policiesthey want without making reference to his-torical injustice or to the unfairness of otheraspects of the international order.

It is unclear whether the limited chal-lenges to the broader framework of globalrules and institutions and their potentialcontributions to the current crisis, are due toa genuine conviction that they do not need tobe challenged or, rather, due to a desire toretain credibility in a domain that is increas-ingly framed within the terms and argu-ments of neoliberal economics. This neglectof the broader framework of rules may sim-ply be a result of what G. A. Cohen has calledthe “tendency to take as part of the structureof human existence in general any structurearound which, merely as things are, much ofour activity is organised.”48 The debate con-cerning rules governing intellectual propertymay be one example of a wider phenome-non: we all focus intensely on the tip of theinstitutional iceberg because only that isabove water. If, however, participants onboth sides of debates concerning globalproblems fail to consider the unfairness ofdeeper and older aspects of the internation-al order—which mediate the effects of these

47 For discussion, see Charles Beitz, Political Theory andInternational Relations, rev. ed. (Princeton: PrincetonUniversity Press, 1999); Hillel Steiner, An Essay onRights (Oxford: Blackwell, 1994), esp. pp. 260–75; andThomas W. Pogge, World Poverty and Human Rights.48 G. A. Cohen, “Capitalism, the Proletarian and Free-dom,” in Alan Ryan, ed., The Idea of Freedom (NewYork: Oxford University Press, 1982), p. 14.

Documents

Access to Medicines and the Rhetoric of Responsibility