Human Rights against Dominium

This post is part of a symposium on Amy Kapczynski’s essay “The Right to Medicines in an Age of Neoliberalism.” All contributions to the symposium can be found here.

Amy Kapczynski’s essay, “The Right to Medicines in an Age of Neoliberalism,” is a persuasive and provocative retort to recent claims by Naomi Klein and others that human rights discourse is an impotent weapon against neoliberalism, if not a complement to it. Through the specific example of the human right to medicines guaranteed by law in Brazil and Colombia, she shows how demands made in the idiom of human rights can provide claimants access to often exorbitantly priced pharmaceuticals otherwise beyond the reach of individual users, thus making possible an expansion of state provisioning seen as antithetical to actually existing neoliberalism. This is not a trivial practice. She cites the figure of forty thousand people per year filing suit for access to medicine and health in Brazil, and often winning. In Colombia, there is even more litigation.

Kapczynski is clear-eyed about the limitations of the model. As always, legal literacy and access to legal help are formidable barriers to the appeals being made by society’s neediest. More foundational, however, is the structure of the right. As she shows, governments are compelled to pay the prices demanded by the pharmaceutical companies. The state foots the bill for the human right to medicine and Big Pharma pockets the profits.

Yet Kapczynski’s real project is not to celebrate the human right to medicine as practiced but reflect on it as an opening to rethink the constitutive forms of neoliberal global political economy itself. Here she introduces the terms of imperium and dominium proposed by some neoliberal intellectuals as a way of thinking about world economic order. In this framing, imperium is the world of states and sovereignty, dominium is the world of property and ownership.

One can think of neoliberalism at the global scale as a project of insulating dominium from imperium—and refashioning states as guardians and protectors of the division. As Kapczynski observes, the human right to medicine follows this model perfectly. In this version of human rights, the citizen can make demands on their own state within the space of imperium but this merely obliges the state itself to fill the demand by adhering to the prices set in the allegedly “free market” space of dominium.

The theoretical reframing implicit in Kapczynski’s piece is that we must reconceptualize human rights as claims directed primarily against dominium instead of imperium. Provisioning must not be a demand fulfilled at the expense of a government anxious to secure legitimacy domestically or externally. Rather, infringement on the autonomy of price-setting and distribution by the private corporation should be seen as pro forma—a workaday aspect of human rights in practice. Private profit must take the hit for the public service.

Seeing the pharmaceutical company itself rather than the health ministry or constitutional court as the addressee of the human right to medicine could set the stage for Kapczynski’s bracing demand for an “anti-neoliberal” human rights discourse.

Kapczynski is correct to suggest that such a reframing would be an affront to the actual existing neoliberal order in which “human rights have generally been conceived of as having no necessary relation to arrangements of political economy” (91). But she is also correct on two supporting points. First, there is no natural match between neoliberal economic theory and the rigorous encasement of private intellectual property rights on the global level. There are many IP doves and even IP opponents among neoliberal economists, suggesting potential if unlikely allies from either the libertarian or the consequentialist camp for looser IP norms on economic-efficiency (rather than ethical or political) grounds.

More encouraging, if also in a counter-intuitive way, is the observation of the shambolic progress of the global IP regime’s emergence in the last quarter century. Kapczynski points to the TRIPS agreement included in the creation of the WTO in 1995. This was indeed the world’s first enforceable global IP regime. Yet as the premier chronicler of TRIPS, Susan Sell, has noted, the agreement hardly locked in IP rights for all time, as some of its advocates hoped and some of its leftist critics feared. In fact, a combination of dissatisfaction at the success of Global South claims for deviations from protection, especially for HIV pharmaceuticals, and a desire for even stricter norms led richer nations to practice forum-shifting, rebooting the World Intellectual Property Organization (WIPO) and turning to the (now stalled) super-regional agreements of TTIP and TPP in pursuit of tighter enforcement. Far from a seamless fortress, the IP regime is more like an “up-armored” U.S. Army Humvee in the Middle East: still surpassing its rivals in power but improvised and prone to breakdown as well as to attack from unexpected quarters.

Drug companies are experiencing a legitimacy crisis. One recent poll showed that less than 10% of U.S. consumers think that pharmaceutical and biotech companies “put people before profits.” Champions of an anti-neoliberal human rights should capitalize on this crisis by pushing policymakers to strengthen the armor of imperium to batter down the walls that private corporations have built around their profit. In some cases, this would mean simply enforcing existing laws, as Kapczynski notes, by instituting price controls or enforcing compulsory licensing. In other cases, this could involve articulating anti-neoliberal IP rights that put human welfare and redistributive outcomes on the scale against shareholder value and maximization of CEO pay. Close looks at the details of human rights and neoliberalism in practice such as the one offered by Kapczynski make clear that the settlement between imperium and dominium is always being made and remade. Progressive human rights must look for the cracks in the armor.

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