Interactions between hard and soft power: The institutional adaptation of international intellectual property protection to global power shifts

Abstract

Prevailing power transition theories focus on hard sources of power to explain why international institutions do, or do not, adapt to shifts in the balance of power among their members. This article argues that, in the wake of such a shift in the balance between emerging and established powers, institutional adaptations depend on both their hard and soft power resources. Soft power matters for institutional adaptations because both emerging and established powers have to justify the use of hard power to their respective audiences. Whether emerging or established powers are able to use the hard power they have depends crucially on rhetorical resources, such as claims of legitimacy and their (transnational) societal resonance. We provide empirical support for our argument through an analysis of the adaptation of the Trade-Related Aspects of International Property Rights agreement and the adaptation of the Convention on Biological Diversity. Emerging powers such as Brazil, India and South Africa were able to bring about institutional adaptations because they not only had the hard power to undermine the respective institutions, but could also build on civil society support that legitimized their demands or constrained established states’ use of hard power to fend off their demands.

Keywords

Civil society Convention on Biological Diversity institutional change intellectual property rights power transition soft power World Trade Organization

Introduction

The relative rise of emerging powers such as China, India and Brazil and the ensuing relative decline of established powers such as the US, the UK and France typically generate pressure to adapt international institutions and the global order that they underpin to new power realities.¹ Emerging powers aim to gain the same institutional privileges that established powers want to preserve for themselves. For example, since the early 2000s, emerging powers have asked for more voting rights in the International Monetary Fund (IMF), for permanent seats in the United Nations Security Council (UNSC) and for better representation in the World Trade Organization (WTO); established powers have typically tried to prevent the institutional adaptations that these developments would require.

While traditional power transition theories (PTTs) assume that attempts to bring about institutional adaptations to power transitions are generally bound to fail (Gilpin, 1981; Kennedy, 1981; Modelski, 1978, 1987, 2005; Organski, 1968; Organski and Kugler, 1980), more recent power shift theories (PSTs) start out from the idea that the success or failure of efforts to make institutions adapt to shifting distributions of power crucially depend on the relative bargaining strengths of established and emerging powers (Hopewell, 2015; Ikenberry, 2011; Kirshner, 2012; Paul, 2016; Schweller and Pu, 2011; Stephen, 2014; Zangl et al., 2016).² The more emerging powers are able to issue credible threats to undermine the institution in question, the more likely it is that established powers will accept institutional adaptation. The less emerging powers can do to undermine the institution and the less credible their threats, the more likely it is that established powers will reject it. According to this view, the adjustment of the WTO core negotiation group, the so-called Quad, was made possible because its would-be new members, Brazil and India, were able to make credible threats to block the trade liberalization negotiations of the Doha Round. By contrast, attempts to adapt the UNSC stalled because India, Brazil, Germany and Japan lacked the power to give credibility to their threats to undermine the UNSC if their demands for a permanent seat on it remained unfulfilled (Zangl et al., 2016).

The relative bargaining strength of emerging and established powers is certainly important for an adequate understanding of institutional adaptations in the wake of power shifts, but prevailing PSTs are too much concerned with hard power and unduly ignore soft power. This is unfortunate because constructivist theories have convincingly demonstrated the relevance of rhetorical action and of civil society advocacy for institutional change (Keck and Sikkink, 1998; Risse, 2000; Schimmelfennig, 2001; Sell and Prakash, 2004). In their view, the arguments put forward by civil society actors and their advocacy networks are of the utmost importance for an adequate understanding of institutional change. However, so far, these theories have mostly been applied to institutional change driven by normative changes brought about by norm entrepreneurs and their advocacy networks. They have not been applied to institutional changes driven by shifts in the distribution of power among the member states of the institution under examination.

To come to a fuller understanding of institutional adaptation to international power shifts, we aim to complement prevailing hard-power-oriented PSTs with soft-power-oriented civil society theories of institutional change. We argue that institutional adaptations cannot be explained by looking exclusively at hard power sources such as military capabilities or economic strength; adequate explanations also require soft power sources such as the civil society resonance of emerging and established powers’ arguments to be taken into account. What is more, we introduce a theory that specifies how the hard and soft power sources interact to shape negotiations on the adaptation of international institutions to shifts in the global distribution of power. Our first step is to develop this theory. We claim that soft power matters in institutional adaptations to power shifts because both emerging and established powers have to justify the use of hard power to their respective audiences. Thus, whether emerging or established powers can actually use the hard power that they have depends crucially on the soft power that they are able to mobilize. In a second step, we present empirical support for our theory through an analysis of the adaptation of the Trade-Related Aspects of International Property Rights (TRIPS) agreement in the WTO, as well as the addition of the Nagoya Protocol on Access and Benefit Sharing (ABS) to the Convention on Biological Diversity (CBD). We show that it was crucial that the emerging powers not only had the hard power to undermine the respective institutions — TRIPS and the CBD — but were also able to forge a soft-power-based coalition with civil society actors. The latter’s support helped legitimize their threats to undermine these institutions while, at the same time, delegitimizing established powers’ threats of retaliation. We conclude the article by summarizing our main findings and reflecting on their generalizability.

Theorizing institutional adaptations to global power shifts

PSTs generally suppose that international institutions reflect the distribution of power at the time of their creation. International institutions may provide benefits for all their members, but the benefits are typically distributed in favour of their most powerful member states (Fioretos, 2011; Krasner, 1991). This is why a shifting distribution of power typically triggers attempts at institutional adaptation: emerging powers seek institutional changes that reflect their improved position vis-a-vis established ones (Gilpin, 1981; Ikenberry, 2011). PSTs conceive the resulting attempts at institutional adaptation as bargaining processes in which success or failure is largely determined by the distribution of bargaining power between established and emerging contenders.³ The latter use their growing power to demand institutional adaptations while the former draw on their power to resist them (Gilpin, 1981; Schweller and Pu, 2011; Stephen, 2014; Zangl et al., 2016). Typically, emerging powers will threaten to undermine the institution’s functioning if their counterparts are unwilling to cater to their demands, while established powers will threaten to retaliate in order to fend them off. From this power-bargaining perspective, the success or failure of institutional adaptation depends on two conditions:

Emerging powers’ attempts at institutional adaptation are doomed to failure if they do not have the power to undermine the institution that the established powers wish to preserve. Power to undermine is a necessary condition for the demands of emerging powers to be successful. Without it, established powers can simply ignore such demands with impunity. To undermine the respective particular institution, emerging powers can block decisions that it makes (sabotage), resign from it (resigning), withdraw support for it (disengaging) (see Hirschman, 1970) or create institutional competitors (hedging) (see Morse and Keohane, 2014). For instance, the US and the European Union (EU) ignored emerging powers’ demands for better representation in WTO decision-making for years. Only after emerging powers such as Brazil and India had become strong enough to undermine the WTO by blocking decision-making through the formation of a developing-country veto coalition during the 2003 Cancún ministerial conference did the US and the EU finally take their concerns seriously (Hopewell, 2015; Zangl et al., 2016).

Emerging powers’ demands for institutional adaptation will also fail if they do not have the power to issue credible threats to undermine the respective institution. Their power to undermine will have little effect if it is not matched by the power to issue credible threats to actually do so. The latter power is therefore a necessary condition for the success of emerging powers’ demands for institutional adaptation. Emerging powers must, in addition, have the strength and determination to withstand established powers’ threats to retaliate. If challengers lack this power, their threats to undermine the institution will not be credible and established powers will easily be able to fend off their demands. While important, it was not primarily the increased ability of Brazil and India to undermine the WTO by blocking decisions that finally forced the US and the EU to include them in the WTO core negotiation group (the ‘Quad’). India and Brazil could have blocked WTO decision-making well before the 2003 Cancún ministerial conference. It was primarily the increased ability of Brazil and India to issue credible threats to this effect that led to institutional adaptation. As the US and the EU could no longer fend off the emerging powers’ threats by simply threatening to retaliate with, for instance, a reduction of development aid or trade concessions, the Indian and Brazilian threat to block WTO decision-making gained in credibility and finally forced the US and the EU to accept the inclusion of Brazil and India into the WTO core negotiation group (Hurrell and Narlikar, 2006; Zangl et al., 2016).

We agree that the ‘power to undermine’ and the ‘power to issue credible threats’ are necessary conditions for institutional adaptations to succeed in the face of established powers’ resistance. However, we take issue with the assumption — implicitly or explicitly made by most PSTs — that both of these conditions are merely reflections of the distribution of hard power resources, with soft power hardly making any difference. To be sure, hard power, understood as the possession of material capabilities, is almost always required for undermining the functioning of international institutions. Only big trading powers can undermine the WTO; only states with large-scale financial assets can undermine the IMF; and it requires military power to undermine the UNSC. Hard power is usually also required if a state is to issue credible threats to undermine the functioning of an international institution. Likewise, material resources help emerging powers to withstand threats of retaliation from established powers.

The ‘power to issue credible threats’, however, rarely depends on hard power only. We claim that the credibility of such threats typically depends on soft power, too. We conceive of emerging powers’ soft power as their ability to make persuasive arguments to justify their demands that resonate with civil society actors and attract civil society support. While we follow Nye’s (2008, 2009) seminal conception of soft power as the ability to attract support, we depart from his understanding in two important ways. First, we highlight that the ability to attract support is not only due to the qualities of a given state, but typically varies with the state’s rhetorical capability to make persuasive arguments. Second, we highlight that the ability to attract support does not mainly concern third states, but concerns more broadly, and more importantly, all kinds of actors from global civil society. Based on this understanding, we argue that emerging powers’ ‘power to undermine’ might stem primarily from their material capabilities, but their ‘power to issue credible threats’ is heavily affected by their rhetorical ability to attract civil society support (Nye, 2004: 256).⁴ Soft power, in fact, operates in two ways that are both fundamental for the credibility of emerging powers’ threats to undermine international institutions that established powers are set to preserve:

Contestation mechanism: soft power gives legitimacy to emerging powers’ attempts to undermine an institution by means of hard power. If emerging powers are able to mobilize the support of global civil society actors to give legitimacy to their calls for institutional adaptation, their threats to undermine the existing institution gain in legitimacy, too. With broad-based civil society support, emerging powers do not have to worry about the fact that resigning from an existing institution backed by established powers, disengaging from it, sabotaging it or creating institutional competitors for it are widely considered as illegitimate strategies. It is unlikely that they will have to face substantial international audience costs for undermining the institution in question (Baum, 2004; Powlick and Katz, 1998). ‘Audience costs’ refers to a loss in reputation suffered by policymakers among their (national or international) constituencies due to their behaviour on the global stage (Fearon, 1994, 1997; Tomz, 2007: 823). The reputational damage involved in international audience costs may harm prospects for future cooperation, lead to loss of investment or even spark a consumer boycott in the wake of civil society campaigns. The stronger the global civil society support for the cause of the emerging powers, the less the international audience costs if they undermine existing institutions. Rather, their attempts to undermine an institution will be perceived as rightful resistance and be met with approval. Emerging powers’ threats to undermine the institution in question are likely to be more credible when they can draw on soft power to legitimize their demands, increasing their chances of being able to make established powers agree to the required institutional adaptations. By contrast, if established powers have superior soft power and can argue convincingly that the institutional status quo is in conformity with fundamental principles and norms that resonate with global civil society, emerging powers’ threats to undermine the institution will be considered less legitimate. Consequently, they are likely to generate sizable international audience costs and will therefore be less credible. Under these circumstances, it is unlikely that emerging powers will be able to gain established powers’ agreement to institutional change.

Retaliation mechanism: emerging powers’ soft power delegitimizes any attempt by established powers to use their own hard power to fend off attempts to undermine the institution. In other words, established powers have to fear that any retaliation against emerging powers that resign from international institutions or try to undermine them through sabotage, disengagement or hedging is likely to be regarded as illegitimate by global civil society actors. Established powers’ use of hard power may even reinforce emerging powers’ soft power as it generally makes it easier for emerging powers to denounce unfair treatment by established powers and mobilize civil society support. Becoming subject to global civil society campaigns that criticize established powers’ use of hard power to fend off legitimate demands on the part of emerging powers is costly, especially for the leaders of established Western powers that are liberal democracies. These leaders have to be aware of what their domestic publics think about their foreign actions so as to not endanger their prospects of re-election (Baum, 2004; Powlick and Katz, 1998). They must, therefore, fear domestic audience costs emanating from (global civil society campaigns targeting) their retaliation against emerging powers that seek to undermine the institutional status quo. Threats of retaliation by established powers are, therefore, likely to be costlier — and thus less credible — if emerging powers can draw on soft power to legitimize their demands, increasing the chances of their being able to force established powers to agree to the required institutional adaptations. In the language of two-level game theory (Putnam, 1988), emerging powers’ possession of soft power widens established powers’ win-set⁵ and/or shifts it towards emerging powers’ preferences, thus increasing emerging powers’ chances of getting a favourable deal in international negotiations. By contrast, if established powers have superior soft power and can argue convincingly that the institutional status quo is in conformity with fundamental principles and norms that resonate with global civil society, their threats to retaliate against emerging powers will be considered legitimate. They will not suffer any domestic audience costs and their threats of retaliation will be that much more credible. Under these circumstances, it is less likely that emerging powers will be able to obtain established powers’ agreement to institutional change.

As a result of these soft power effects on the credibility of emerging powers’ threats to undermine the institutional status quo by means of hard power, we expect that processes of institutional adaptation to global power shifts will not always take the form of games of power bargaining, but will frequently turn into games of rhetorical coercion (Keck and Sikkink, 1998; Krebs and Jackson, 2007; Schimmelfennig, 2001). These are likely to display the following features:

Strategic use of arguments: negotiations on institutional adaptation are shaped not only by the threats (and promises) typical of power bargaining, but also by the strategic use of arguments to legitimize one’s own bargaining position while delegitimizing the position of one’s opponent. Established powers try to justify the institutional status quo by reference to norms and principles that resonate with civil society actors and domestic electorates; emerging powers try to delegitimize it by referring to competing (understandings of the) norms and principles backed by global civil society actors. Both sides also engage in the strategic use of arguments that normatively justify their threats to undermine the institutional status quo or retaliate in defence of it. At the same time, emerging and established powers try to expose inconsistent or hypocritical references to norms and principles made by their counterparts. They take great care to strategically advance arguments that serve their cause (Schimmelfennig, 2001).

Coalition-building attempts with civil society: in applying normative arguments strategically, neither side attempts to convince its opponents of the legitimacy of its position. Rather, it tries to gain civil society support for the legitimacy of its demands and seeks to forge coalitions with transnational advocacy networks (Keck and Sikkink, 1998) in order to legitimize its own position and threats (i.e. threats to undermine the institutional status quo on the part of emerging powers, and threats to retaliate on the part of established powers), while delegitimizing the positions and threats of its adversaries. Through their coalition with transnational advocacy networks, emerging and established powers alike aim to raise the domestic or international audience costs to their opponents of any threats that the latter issue.

Threats depend on (domestic/international) audience costs: whether states follow through on their threats (i.e. to undermine the institutional status quo in the case of emerging powers or to retaliate in the case of established ones) depends not only on their relative bargaining power, but also on their domestic and/or international audience costs. We expect established powers to refrain from their threats of retaliation as soon as emerging powers have successfully increased the related domestic audience costs, and emerging powers to give up their threats to undermine as soon as established powers have succeeded in creating sizeable international audience costs.

Institutional adaptation depends on civil society support: the more that emerging powers gain civil society support and increase established powers’ domestic audience costs, the better their chances that established powers will have to bend to their hard power threats and accept institutional adaptation. By contrast, the more that successful established powers convince civil society actors to support their (counter)claims and increase emerging powers’ international audience costs, the better their chances of fending off emerging powers’ demands through threats of retaliation, thus resisting the sought-for institutional adaptation.

By systematically combining arguments from three well-known existing theories — bargaining theory, and the theories of rhetorical action and audience costs — we introduce a new and coherent theory of international negotiations that specifies how the hard and soft power resources available to emerging and established powers interact during negotiations on the adaptation of international institutions to shifts in the global distribution of power. While conceptually distinct, shifting distributions of hard and soft power are closely intertwined and influence each other. This is particularly visible in the field of intellectual property rights, which we analyse in the following (Kalantzis-Cope, 2016).

The empirics of institutional adaptation: The TRIPS and CBD cases

The main ambition of this article is theoretical. Nevertheless, to assess the empirical plausibility of our theoretical claims, we study two cases of institutional adaptation to emerging power demands. Relying on primary and secondary sources, we study: (1) the adjustment of the agreement on TRIPS with regard to vital medical drugs; and (2) the adjustment of the CBD with regard to the sharing of the benefits of biological resources. We do not claim that these cases of institutional adaptation in international intellectual property regimes provide a rigorous test of our theory with a high risk of falsification; nonetheless, we do believe that they are more than illustrations carrying no risk of falsifying our theory. In fact, they are plausibility probes (Eckstein, 1975). Drawing on so-called congruence analysis (Blatter and Blume, 2008; Blatter and Haverland, 2012: 144–204), we assess the consistency between our theoretical predictions regarding the mechanisms and features of institutional adaptation, and empirical observations in the TRIPS and CBD cases. While both cases indicate that emerging powers’ soft power has a decisive impact on institutional adaptation, the cases highlight different mechanisms. In the CBD case, we mainly find evidence for the contestation mechanism, whereby support from civil society renders emerging powers’ threats to undermine the institution more credible. In the TRIPS case, by contrast, we also find evidence for the retaliation mechanism, whereby the credibility of established powers’ threats of retaliation suffers when emerging powers’ demands receive civil society support.

However, before retracing these mechanisms in the two cases, we should highlight that the interaction of hard and soft power is particularly complex in the field of intellectual property rights: on the one hand, established powers’ hard power hinges to a considerable extent on the global attractiveness of the concept of (private) intellectual property rights as enshrined in TRIPS and the CBD; on the other hand, emerging powers’ soft power entailed very material (potential) consequences for established powers, that is, substantial economic losses resulting from emerging powers’ rhetorical challenge of (private) intellectual property rights as guaranteed by TRIPS and the CBD (see Kalantzis-Cope, 2016).

The TRIPS case

From the late 1990s on, emerging powers such as Brazil and India, in collaboration with countries such as South Africa, demanded a fundamental reform of the regime of intellectual property protection in the WTO. They argued that the intellectual property rights codified in the TRIPS agreement prevented patients in developing countries — especially HIV/AIDS patients — from accessing vital drugs (Kalantzis-Cope, 2016: 6). They wanted the TRIPS regime to give developing countries the right to provide their own pharmaceutical industries with compulsory licences for the production of generic drugs. This would allow access to affordable HIV/AIDS medication to patients everywhere. The emerging powers required that the protection of intellectual property rights within TRIPS should be subordinated to patients’ right of access to vital medical drugs (Hoekman and Kostecki, 2009: 402; Ostry, 2008).

While Brazil, India and South Africa argued in favour of a TRIPS reform, they had also been increasingly developing the hard power resources to back up their demands. By the 1990s, they not only constituted growing markets for medical drugs, but had also developed pharmaceutical industries that were increasingly capable of producing generic drugs not only for their own markets, but also for the markets of other developing countries (Dauvergne and Farias, 2012: 910–911; Grace, 2004).

Moreover, and more importantly, the three countries could also increasingly draw on soft power to make their demands for TRIPS reforms heard. They joined forces with global civil society actors to argue against the legitimacy of the TRIPS regime (Scholz and Wolf, 2014: 10). They supported and received support from public health activists such as James Love and his Consumer Project on Technology (CPT), which had already put the impact of WTO intellectual property protection on patients’ access to vital drugs on the global agenda. They were also supported by established transnational non-governmental organizations (NGOs) that worked on health issues, such as Médecins Sans Frontières (MSF), Health Action International (HAI) and Oxfam International (Drezner, 2008; Sell and Prakash, 2004: 162). These NGOs argued that the global right to health was violated by the TRIPS provisions in question.⁶ The so-called Access Campaign also found allies in international governmental organizations such as the World Health Organization and the United Nations Programme on HIV/AIDS (UNAIDS) (Sell and Prakash, 2004: 163). They all argued that TRIPS should allow emerging powers to issue compulsory licences in order to cope with health emergencies such as the ongoing HIV/AIDS epidemic (Smith et al., 2001; T’ Hoen, 2002: 41). As a result, public awareness in the US and the EU of the impact of TRIPS on public health in developing countries in general and their fight against HIV/AIDS more specifically grew rapidly (Odell and Sell, 2006: 94; Owen, 2013: 265; Sell and Prakash, 2004: 165).

The public attention orchestrated by the Access Campaign gave legitimacy to demands by the emerging powers for a reform of TRIPS. It also legitimized their threats to issue — in disregard of TRIPS — compulsory licences to their pharmaceutical industries to combat HIV/AIDS in their countries. In fact, in 1997, a piece of South African legislation that granted its government the authority to issue compulsory licences to deal with health emergencies was enthusiastically endorsed by the Access Campaign (Medicines Control Act 1997). The director of the CPT, James Love, claimed that the so-called Medicines Control Act provided the opportunity to cut prices for antiretroviral drugs needed by HIV/AIDS patients by about 70% to 95% (Bond, 1999: 765).

Established powers, however, called the South African regime of compulsory licences an open violation of TRIPS. Even in the face of the devastating HIV/AIDS pandemic, which led to a steep increase of deaths in developing countries (Sell, 2007: 57), the US and its EU partners insisted on developing countries’ strict compliance with WTO intellectual property provisions (Drezner, 2008; T’ Hoen et al., 2011: 3). In April 1998, the US administration put South Africa on its ‘Special 301 watch list’, expressing its serious concerns about the South African compulsory licence regime (Bond, 1999: 770). The US threatened to activate the WTO dispute settlement mechanism and prepared trade sanctions to be applied after their authorization by the WTO dispute settlement body. The US thus sought to force South Africa to withdraw its regime for compulsory licences, which allegedly violated WTO law (Bond, 1999: 771).

However, the US administration’s threats to force South Africa into compliance with TRIPS generated substantial domestic audience costs. The threats immediately triggered a massive shaming campaign in the US, which managed to attract broader public attention.⁷ The campaign criticized US threats against South Africa as being a violation of HIV/AIDS patients’ right to health (Novogrodsky, 2010: 349; Odell and Sell, 2006: 93; Owen, 2013: 263). The then US Vice President and presidential candidate Al Gore became a particular target of public attacks. He was accused by activists from the Access Campaign of being personally responsible for the ‘pharma-friendly’ policy of the US and its relentless threats against the South African regime of compulsory licences, which had been successful in saving the lives of many HIV/AIDS patients (Sell and Prakash, 2004: 165; Wadman, 1999). At election campaign rallies, Access Campaign activists repeatedly raised placards claiming that Gore was personally responsible ‘for the death of babies in Africa’ (T’ Hoen, 2002: 44) and warned that they would ‘follow Gore every step of his campaign, until he stop[ped] doing the dirty work of the drug companies for them’ (Sawyer, 1999).

The increasing domestic audience costs did not remain without effect on the US administration’s stance vis-a-vis South Africa’s regime of compulsory licences. With Al Gore trailing George W. Bush in the polls, the administration all of a sudden revised its policy (Thompson and Steinberg, 1999: 52). The Vice President indicated in a letter to Congress that the administration was willing to accept compulsory licences as an instrument to improve access to life-saving drugs (Fisher and Rigamonti, 2005: 8–9). Finally, in 2000, President Bill Clinton ordered that the fight against the South African compulsory licensing regime should end: ‘[T]he United States shall not seek, through negotiation or otherwise, the revocation or revision of any intellectual property law or policy of a beneficiary sub-Saharan African country … that regulates HIV/AIDS pharmaceuticals or medical technologies’ (Clinton, 2000).

Thus, due to massive audience costs, the Clinton administration had given up on trying to force South Africa to repeal its — allegedly TRIPS-violating — regime for compulsory licences. Yet, the US was still fighting any TRIPS reforms that would generally allow the granting of compulsory licences to deal with health emergencies such as the ongoing HIV/AIDS epidemic. In fact, the US administration was still fighting Brazilian legislation — the so-called Local Working Law — which foresaw the issuance of compulsory licences (Odell and Sell, 2006: 95). In early 2000, the US administration filed a complaint with the WTO dispute settlement body to force Brazil into compliance with TRIPS. The US also tried to convince global civil society of the appropriateness of the relevant TRIPS provisions — provisions that, due to the advocacy work of the Access Campaign, were already widely perceived to be inhibiting HIV/AIDS patients’ access to vital drugs (Drezner, 2008). However, US arguments that the TRIPS provisions were necessary if vital drugs were to be invented in the first place found hardly any civil society resonance; neither did arguments that the lack of access to vital drugs in developing countries had reasons other than the TRIPS regime (Owen, 2013: 270; Sell and Prakash, 2004: 165). US arguments in support of these WTO provisions finally faltered when it became public, in 2001, that the US Federal Health Department had threatened to issue compulsory licences for a substance used against anthrax to protect the US population against terrorist attacks with anthrax agents (Sell and Prakash, 2004: 165). Brazil and other emerging powers of the so-called Public Health Coalition asked ‘why are ten lives sufficient [to break a patent] in your country, but one million lives in developing countries not sufficient? What is the difference?’ (quoted in Odell and Sell, 2006: 103).

Accordingly, Brazilian disregard of WTO intellectual property provisions was increasingly considered legitimate by global civil society, while the US complaint to the WTO dispute settlement body — and the connected threat of trade sanctions — was increasingly considered illegitimate. In fact, with the help of the Access Campaign, Brazil managed to turn US retaliatory threats against its regime of compulsory licences into a public relations (PR) disaster (Novogrodsky, 2010: 349; Odell and Sell, 2006: 93; Owen, 2013: 263). Civil society groups such as MSF and Oxfam criticized the threats for putting the health of thousands of HIV/AIDS patients in developing countries at risk. The director of MSF’s Access to Essential Medicines campaign, Bernard Pécoul, publicly stated: ‘[t]he US complaint [to the WTO dispute settlement body] threatens the Brazilian AIDS policy, which includes providing free drugs to HIV infected people. The lives of hundreds of thousands of patients depend on this system’ (MSF, 2001). Similarly, Oxfam proclaimed that it ‘believes that higher prices for medicines will cause unnecessary sickness and death among the sixty million Brazilians living in poverty, and calls on the US government … to stop putting pressure on Brazil to change its policies’ (Oxfam International, 2001).

As in the case of South Africa, global civil society pressure orchestrated by the Access Campaign caused the US to refrain from retaliation against Brazil’s alleged non-compliance with the WTO intellectual property provisions of the TRIPS agreement. In 2001, US Trade Representative Robert Zoellick announced that the US would no longer pursue its WTO complaint against Brazil’s Local Working Act, stressing that ‘[the US wants] to protect intellectual property rights without compromising … efforts to combat HIV/AIDS’ (quoted in Attaran and Champ, 2002: 381). Due to increasing domestic audience costs, he had come to the conclusion that US hardball tactics to force emerging powers into compliance with TRIPS were no longer feasible. To prevent emerging powers’ non-compliance with WTO intellectual property rights provisions from undermining the whole TRIPS regime, the US accepted TRIPS reforms (Abbott, 2002: 488).⁸ In the end, the US agreed to the 2001 Doha Declaration, clarifying ‘that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health’ (WTO, 2001). The declaration was confirmed in 2003 by a formal Waiver decision of the TRIPS Council (WTO, 2003) and later by the TRIPS Amendment Protocol of 2005 (Odell and Sell, 2006).

In sum, the TRIPS case clearly underlines the plausibility of our claim that institutional adaptations to shifts in the global distribution of power are not always exclusively shaped by the distribution of hard power resources between emerging and established powers, but are also shaped by the distribution of soft power. Alternative explanations based on either hard power only (Drezner, 2008) or soft power only (Sell and Prakash, 2004) fail to explain the adaptation of TRIPS to emerging powers’ demands:

The TRIPS adjustment cannot be explained by hard power only. Emerging powers clearly lacked the hard power resources to force established powers, especially the US, to accept a more flexible WTO regime of intellectual property protection. Of course, due to their ability to produce generic drugs in disregard of TRIPS, South Africa and Brazil clearly had the ability to undermine the WTO regime of intellectual property protection. Yet, their threats to use this ability beyond narrowly defined limits would hardly have been credible had the US been able to follow through on its WTO complaint and employ WTO-backed trade sanctions against them. They would have been forced to back down, as Thailand did in an earlier attempt to establish a domestic regime of compulsory licences (Ford et al., 2007; Odell and Sell, 2006). Moreover — and more importantly — the reason why the US could not follow through on its WTO complaint had nothing to do with emerging powers’ hard power. South Africa and Brazil could not deter the US from seeking a WTO ruling on their respective regimes of compulsory licences. As expected by our theory, the reason why the US could not follow through on its WTO complaint was civil society pressure orchestrated by the Access Campaign. The domestic audience costs of retaliation were simply too high. The US had to agree to the required TRIPS reforms because, due to civil society pressure, it was the only feasible option left to prevent emerging powers’ non-compliance from spreading beyond the narrowly defined limits of granting compulsory licences to deal with health emergencies.

Neither can the TRIPS adjustment be explained by soft power only. Certainly, without civil society pressure, there would have been no TRIPS reform. Yet, civil society pressure orchestrated by the Access Campaign would not have been enough to force the US into accepting it. Emerging powers’ hard power was crucial too. To begin with, without emerging powers’ increasing drug markets and increasing ability to produce for those markets, the US could and would have simply tolerated emerging powers’ regimes of compulsory licences for HIV/AIDS drugs. It was only their increasing markets and ability to produce for them that brought the US to file a WTO complaint threatening trade sanctions. It was, in turn, precisely these threats that were crucial for the Access Campaign to gain public attention in the US. Without them, the Access Campaign would have been about a complex TRIPS regime that undermined life-saving treatment for many HIV/AIDS patients in the developing world; with them, it was about an identifiable actor — the US — that could be shamed for preventing developing countries from providing life-saving treatment for many HIV/AIDS patients in the developing world. It was precisely this latter framing — a framing that crucially depended on emerging powers’ hard power, that is, their ability to produce generic drugs — through which the Access Campaign gained public attention in the US. Moreover, emerging powers’ capabilities as producers of generic drugs were also crucial in causing the US to not only withdraw its WTO complaint, but also accept the required TRIPS adjustment. The fact that emerging powers could have started producing generic drugs beyond the narrowly defined limits of health emergencies, such as the ongoing HIV/AIDS epidemic, gave the US an incentive to accept TRIPS reform.

The upshot is, therefore, that the institutional adaptation of the TRIPS regime to emerging powers’ demands cannot be explained based on their hard or soft power only. Both kinds of power were needed to force the US into accepting the required TRIPS reforms.

The CBD case

In the late 1990s and early 2000s, emerging powers such as Brazil and India called for a fundamental reform of the 1992 CBD, a reform that many established powers such as the US, the EU and Japan had always rejected. Brazil and India, in particular, criticized the extant CBD regime for not ensuring that the ‘takers’ and ‘users’ of biological resources and traditional knowledge, who came mainly from the developed countries, had to compensate adequately the ‘providers’ of these resources in developing countries because it lacked a legally binding ‘Access and Benefit Sharing’ (ABS) mechanism (Orsini and Diallo, 2015). While generally acknowledging the principles of ‘benefit sharing’ and ‘prior informed consent’, the CBD did not provide a legally binding mechanism that defined how takers and users were to compensate providers (Robinson, 2010: 27). Under the CBD, in fact, developed countries’ pharmaceutical and biotechnological industries could take samples of genetic resources or draw on traditional knowledge in developing countries and acquire intellectual property rights without paying any compensation (Orsini and Diallo, 2015: 262; Wallbott et al., 2014: 34). To curb this praxis of ‘biopiracy’ and promote a more sustainable use of biological resources, emerging powers such as Brazil and India required established powers to undertake an adjustment of the CBD making provision for the takers and users of biological resources to pay fair compensation to the providers (Buck and Hamilton, 2011: 48).

While Brazil and India were arguing in favour of a CBD adjustment that provided for meaningful access and a benefit-sharing mechanism, they were also increasingly coming into the possession of the hard power resources to back up their demands. First, they had territorial control over huge amounts of biological resources and traditional knowledge, access to which was becoming ever-more vital for established powers’ biotechnological and pharmaceutical industries. In fact, Brazil and India were becoming superpowers in terms of biological diversity (Orsini and Diallo, 2015: 262). Furthermore, these two countries increasingly had the capacity to develop and market products from their biological resources, especially in the pharmaceutical and biotechnological industries, while, at the same time, they were turning into increasingly important markets for pharmaceutical and biotechnological products. Moreover, the coalition of Like-Minded Megadiverse Countries (LMMC), which, under their leadership, was pushing for more adequate benefit sharing under the CBD, further enhanced emerging powers’ hard power vis-a-vis the established powers (Buck and Hamilton, 2011: 48).

Apart from their hard power, Brazil and India could also draw on soft power to back up their demand for more adequate benefit sharing under the CBD. To argue against the legitimacy of the CBD, they joined forces with global civil society actors, especially the so-called CBD alliance, a global network of about 400 NGOs — including, for instance, Friends of the Earth, the Global Forest Coalition, the Third World Network and the Berne Declaration — which pushed for comprehensive CBD reforms. The CBD alliance criticized the principle of free access to genetic resources and related traditional knowledge as provided for by the CBD and required, just like the emerging powers, stringent access restrictions to biological resources and the obligation of benefit sharing. They also criticized established powers’ resistance to the reform of the CBD as demanded by emerging powers. In their view, this resistance amounted to ‘biocolonialism’ (Kanehe, 2008). It was further argued in the CBD alliance newsletter that:

[f]or hundreds of years, users had an unconditional access to genetic resources and associated traditional knowledge. In a world where the means to use these resources and derive benefits from them are distributed in an unequal manner, unconditional access to genetic resources aggravates the current situation that is already characterized by severe imbalances. The international regime has to provide a rebalancing. (Frein, 2009)

Mainly by exposing particularly awful cases of ‘biopiracy’ in the mid-2000s, activists from the CBD alliance became increasingly successful in drawing public attention to these reform requirements among the civil societies of both emerging and established powers.

The growing public attention and the support from global civil society gave legitimacy not only to emerging powers’ demands for more adequate benefit sharing under the CBD, but also to their threat to restrict access to their biological resources if established powers continued to ignore these demands. Although reducing access to their biological resources and related traditional knowledge in general and thereby harming users from established powers in particular was against the spirit, if not the letter, of the CBD, they could do so without having to fear international audience costs; they just argued that it was necessary to promote sustainable development (Wallbott et al., 2014: 43). Brazil, in particular, became increasingly restrictive. In 2005, it enacted legislation against the unauthorized use of plants and animals by foreign companies, which included fines for violations of up to USD20 million (De Oliviera, 2005). Foreign companies had to ask permission to use ecological resources and the related traditional knowledge from Brazil, and they had to share the benefits with the Brazilian state (or the local communities). India began to (re)regulate access to its biological resources and traditional knowledge too, albeit with a different approach. In 2009, for instance, the Indian government licensed 200,000 local treatments as ‘public property’ in order to avoid foreign companies applying for patents covering traditional Indian knowledge (Kraus et al., 2009). Moreover, to prevent biopiracy-based patents from being issued, India also installed a digital database of its traditional knowledge that was designed to be accessible to established powers’ patent offices (Jajaraman, 1999). Rather than provoking domestic or international audience costs, these Brazilian and Indian restrictions on access to their biological resources and traditional knowledge were consistent with the growing demands, articulated by many global civil society actors, for the issue of biopiracy to be tackled (Dempsey, 2009; Kanehe, 2008).

The growing public attention and the support from global civil society also gave legitimacy to emerging powers’ threats to take action against intellectual property rights (i.e. patents) that were granted by established powers’ patent offices despite the rights-holding companies’ biopiracy. The following two episodes illustrate how emerging powers, with the help of civil society actors, managed to undermine the institutional status quo of established powers claiming extensive intellectual property rights without granting adequate compensations to the providers of the underlying biological resources:

Cupuaçu fruit: the Brazilian government, with strong support from a civil society network, challenged the ‘cupuaçu’ trademark that the Japanese Patent Office had granted to Asahi Foods Company and its subsidiary, ‘Cupuaçu International’. In doing so, it challenged the hardly limited access to biological resources guaranteed by the CBD. Due to the protection of the trademark, Brazilian farmers could no longer market the fruits and products containing the fruit under their traditional name of ‘cupuaçu’ (Munoz Tellez, 2013: 2; Osava, 2003). To challenge the granting of the trademark, Brazilian NGOs started a massive civil society campaign. The NGOs not only organized demonstrations throughout Brazil, but also gathered support from NGOs abroad. The resulting civil society network managed to attract media attention at the international as well as the national level to biopiracy in general and the cupuaçu trademark more specifically (Schmidlehner, 2003). Public attention orchestrated by the ‘Cupuaçu is ours’ campaign also gave legitimacy to — and thus reduced the risk of audience costs from — threats by the Brazilian government to take action against any further granting of intellectual property rights for cupuaçu-based products by the Japanese Patent Office. In its complaint filed with the Japanese Patent Office, the ‘Cupuaçu is ours’ campaign — supported by the Brazilian government — argued that the CBD precluded the granting of trademarks for generic names of natural species by its member states’ patent authorities. Giving in to these arguments, the Japanese Patent Office not only denied a patent for processing cupuaçu seeds into a chocolate-like product, but finally also annulled, in April 2004, the previously granted trademark ‘cupuaçu’ (Munoz Tellez, 2013: 2; Osava, 2003).

Neem tree: the Indian government gave support to domestic and international civil society actors who challenged patents for products, such as fungicides and pesticides, produced from the seeds of the so-called neem tree. In doing so, they contested established powers’ rather free access to and the extensive patentability of biological resources under the CBD regime. The European Patent Office had granted the patent in question to the US pharmaceutical company W.R. Grace and Co. (Hamilton, 2006: 165). Complaints of biopiracy from Indian farmers were soon picked up by civil society activists, who built up a network including, for instance, the Indian Research Foundation for Science, Technology and Ecology and the International Federation of Organic Agriculture Movements (Shiva, 2000: 507). The public attention attracted by the ‘neem campaign’ clearly boosted the legitimacy of challenging the biopiracy involved in the exploitation of the neem tree. Running no risk of domestic or international audience costs, the Indian government lent substantial financial support to legal action against the European Patent Office’s granting of patents for neem tree products (Biswas, 2005). As the fungicidal effect of hydrophobic extracts of neem seeds had been known and used in India for centuries, the patent lacked two statutory requirements for the granting of a European patent, namely, ‘novelty’ and ‘inventive step’ (Bullard, 2005). In 2005, the European Patent Office was finally persuaded to revoke the patent for neem tree products, bringing to an end the 10-year battle by Indian local communities, the Indian government and the neem campaign against this case of biopiracy (Hamilton, 2006: 167).

As their challenge to patents granted by the patent offices of established powers in the ‘cupuaçu’ and the ‘neem’ cases was widely considered legitimate in global civil society, the Indian and Brazilian governments did not run the risk of domestic or international audience costs. To the contrary! Both governments drew praise from domestic and international audiences for restricting access to their genetic resources and their traditional knowledge and for taking action against patents granted to companies that failed to compensate the ‘original owners’ of the genetic resources and the traditional knowledge that their patents drew on (BBC, 2005; Schmidlehner, 2003). As they did not face any audience costs arising from a more restrictive approach, they could undermine the barely limited access to biological resources and related traditional knowledge prescribed by the CBD. Both the cupuaçu and the neem episodes thus illustrate that it was crucial for emerging powers to draw on civil society support to challenge patents and contest the institutional status quo.

By contrast, the established powers’ resistance to emerging powers’ demands for a binding CBD ABS mechanism was criticized in global civil society as illegitimate. To protect their ‘life industries’, which owned many patents that could be discredited as ‘biopiracy’, established powers like the EU, Japan and the US tried to water down the existence of biopiracy or deny it outright (Singh, 2000). The US even aimed to reframe the debate: ‘They claim that patent regulation aimed at protecting indigenous resources and knowledge is the work of “overzealous bureaucrats” and is often so restrictive that it has criminalized research … when research should be encouraged’ (Dunagan, 2009: 624). However, such arguments in favour of the institutional status quo did not fly among civil society actors. The existence of biopiracy was considered a fact — a fact that required restricting access to biological resources and traditional knowledge and a more stringent sharing of the commercial benefits deriving from biological resources and traditional knowledge. Even defending the institutional status quo of the CBD generated domestic and international audience costs for established powers. While difficult to prove, it is at least plausible that these audience costs deterred established powers from deploying their hard power resources in order to force emerging powers to accept — as foreseen by the CBD — continued free access to their biological resources and the related traditional knowledge without any binding commitment to benefit sharing.

Established powers were thus unable to prevent emerging powers from restricting access to their biological resources and traditional knowledge even further and challenging the patents of companies that drew on them without paying adequate compensation. To preserve the CBD, especially the principle of free access to biological resources and traditional knowledge, which is of utmost importance for their life industries, established powers finally gave up their resistance to emerging powers’ demands for a binding CBD mechanism on benefit sharing. Adopting a damage-control policy, they accepted the ABS mechanism required by emerging powers (Wallbott et al., 2014: 36). In 2010, they agreed on the so-called Nagoya Protocol supplementing the CBD. The protocol lays down concrete rules with regard to access to genetic resources as well as benefit sharing (Kamau et al., 2010). Among other things, it gives provider countries legal permission to restrict free access to their genetic resources and to require from users the sharing of benefits, while also committing providers to establishing comprehensible rules that give users legal certainty about the conditions of access and benefit sharing. It provides legal certainty for the user activities in provider countries as well as the provider countries’ activities against some users’ biopiracy (Kamau et al., 2010).

The CBD case underlines the plausibility of our claim that the distribution of both hard and soft power matters in institutional adaptation to shifts in the global distribution of power. By contrast, alternative explanations focusing on either hard power only (Orsini and Diallo, 2015) or soft power only (Coolsaet and Pitseys, 2015; Wallbott, 2014) fail to account for the adjustment of the CBD regime:

The Nagoya Protocol cannot be explained by hard power only. Emerging powers’ hard power resources were not sufficient to force established powers to accept a legally binding ABS mechanism in the CBD regime. To be sure, emerging powers’ possession of biological resources on their territories and their ability to restrict access to these resources was a major asset in achieving the modifications they desired in the regime. Yet, threats to undermine it by means of unilateral access restrictions and national challenges to particular patents would have hardly been credible if emerging powers had been unable to draw on their soft power, that is, civil society support, to bestow legitimacy on their unilateral actions. Without this civil society support — and its legitimating effect — emerging powers would have had a hard time playing the hard power game as they did. It would have been difficult for them to follow through on their threats to enact unilateral access restrictions and to challenge the patents issued by established powers’ patent offices. It is likely that, without backing from the CBD alliance, these activities against the spirit, if not the letter, of the CBD regime would have created prohibitively high audience costs. It is also likely that established powers could have played a hard power game too, issuing retaliatory threats to force emerging powers to accept the institutional status quo. Thus, the adaptation of the CBD regime cannot be attributed to emerging powers’ increasing hard power sources alone; their soft power was required to make the threats to use these hard power resources credible.

Neither can the institutional adaptation of the CBD be explained by soft power only. Civil society support for ‘provider countries’ was, indeed, vital for established powers’ acceptance of the ABS provisions of the Nagoya Protocol, yet pressure by the CBD alliance would not have been sufficient to force established powers into an acceptance of institutional adaptations. Emerging powers’ hard power was crucial too. Without their ability to restrict access to biological resources and to challenge existing patents issued by established powers’ patent offices, the latter powers could simply have ignored civil society arguments about unfair access to genetic resources and insufficient benefit sharing under the current CBD. It was emerging powers’ ability to restrict access and challenge patents that gave bite to civil society actors’ campaign against the institutional status quo. Moreover, emerging powers’ increased scientific and industrial ability to make economic use of their biological resources contributed to the credibility of threats to ‘nationalize’ the latter and restrict international access. Thus, the hard power resources of emerging powers were a prerequisite for soft power to matter in established powers’ acceptance of institutional change.

In the end, the institutional adaptation of the CBD regime to emerging powers’ demands cannot be explained based on their hard or soft power only. Both were needed to force established powers such as the EU and Japan to accept the ABS mechanism of the 2010 Nagoya Protocol to the CBD.

Conclusion

These two cases — the adaptation of the TRIPS agreement and the CBD regime — lend empirical support to our theory according to which institutional adaptation to shifts in the global distribution of power is shaped by a combination of hard and soft power resources. They underline that emerging powers need hard power to be able to undermine the institution in question. Without it, their demands for its adaptation are unlikely to be heard. The cases also underline, however, that soft power matters for the success of attempts by emerging powers to change the institutional status quo as it shapes the perceived legitimacy, and thus the credibility, of their threats to undermine the institution. As expected by our theory, the two cases show that soft power, that is, the resonance of emerging powers’ arguments among civil society actors and their ability to attract civil society support, can work through a contestation or a retaliation mechanism (or both). The CBD case demonstrates that civil society support can help legitimize threats to undermine institutions made by emerging powers, reducing their international audience costs and rendering these threats credible (contestation mechanism). By contrast, the TRIPS case shows that civil society support can increase the domestic audience costs of retaliatory measures by established powers, thereby reducing the credibility of their threats to use hard power to fend off emerging power demands (retaliation mechanism). In either case, emerging powers’ success in achieving the desired institutional adaptations depended on both their material hard power to actually undermine the institution in question and their rhetorical soft power to legitimize their threats to do so.

Of course, we must not generalize from the TRIPS and CBD cases too easily. The cases merely provide plausibility probes of our theory. Additional case studies on the relevance of soft power for institutional adaptation to power shifts are warranted. These should include cases of institutional adaptation in different issue-areas (not merely intellectual property protection), in different time periods (not merely in the early 21st century) and involving different emerging powers (not merely Brazil and India). We have only begun to appreciate under what circumstances soft power matters in hard power struggles over institutional adaptation. While we have shown that soft power sometimes matters, we suspect that it does not always matter. In order to get a better theoretical grasp, further research could focus on the conditions under which soft power does make a (bigger) difference to institutional adaptation. We believe, notwithstanding, that even the specification of how soft power shapes negotiations about the adaptation of international institutions to shifts in the distribution of hard power among their members marks a significant step towards a comprehensive theory of institutional adaptation.

Moreover, we are inclined to think that our theory may even contribute to a better understanding of international negotiations in general. In specifying how material hard power and rhetorical soft power interact, it sheds light on why international negotiations almost always entail not only threats and promises, but also the strategic use of arguments. It can explain why negotiating parties typically combine hard-power-based threats and promises with soft-power-based rhetorical action (Krebs and Jackson, 2007; Schimmelfennig, 2001). From a rhetorical perspective, negotiating parties typically draw on arguments not in order to convince their counterparts of the legitimacy of their demands, but to increase civil society support for them. This is — in our view — an entirely rational strategy since it supports the legitimacy of one’s own threats during negotiations while undermining the legitimacy of those of one’s opponents. As legitimacy shapes audience costs and thus the credibility of threats, arguments are of the utmost relevance to negotiation outcomes. Our approach may be understood as a step towards a general theory of international negotiations that seizes the middle ground between constructivist theories of argumentative action (Risse, 2000) and traditional theories of power bargaining (Sebenius, 1983). As such, it contributes to the development of more nuanced theories of rhetorical action or coercion (Krebs and Jackson, 2007; Schimmelfennig, 2001).

Footnotes

Acknowledgements

We would like to thank Justus Dreyling, Christian Kreuder-Sonnen, Hilde van Meegdenburg, Berthold Rittberger, Thomas Rixen, Lora Viola and the participants of workshops and research colloquia in Florence, Freising, Berlin and Munich for their very helpful comments on earlier versions of this article.

Funding

This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

Notes

Author biographies

Benjamin Daßler is Teaching and Research Associate at the Chair for Global Governance and Public Policy at the Ludwig-Maximilians-University (LMU) Munich, Germany. His research focuses on the role of emerging powers in global governance and institutional interactions within regime complexes. In his dissertation, he examines institutional fragmentation within different policy regime complexes from a social network perspective.

Andreas Kruck is Assistant Professor of Global Governance and Public Policy at the LMU Munich, Germany. His research focuses on international institutions and private actors in global politics. He has published articles on these topics in journals such as The Annals of the American Academy of Political and Social Science, The Review of International Organizations, Journal of European Public Policy and Journal of International Relations and Development. He is co-editor of Researching Non-State Actors in International Security: Theory and Practice (Routledge 2017).

Bernhard Zangl is Professor of Global Governance and Public Policy at LMU Munich, Germany. His research is on the role of international organizations in global governance. Among others, Bernhard Zangl is a co-editor of International Organizations as Orchestrators (Cambridge University Press, 2015). This volume shows how international organizations try to fulfil their tasks despite limited capacities by bringing third parties into their governance arrangements. His research was published in the Annual Review of Political Science, British Journal of Political Science, European Journal of International Relations, International Studies Quarterly, Review of International Organizations, Journal of Common Market Studies and so on.

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