Human Rights against Dominium

humanityjournal.org/blog/human-rights-against-dominium/

Quinn October 4, 2019

Slobodian

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
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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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