Of Medicines and Markets: Intellectual Property and Human Rights in the Free Trade Era

What do human rights mean in an era when corporations enjoy rights as people? As U.S. courts grant a widening spectrum of constitutional rights to corporations, and as the international trade system advances the interests of transnational capital through rights-based mechanisms such as intellectual property, the questions of what rights mean and how best to secure them have taken on renewed significance. In a timely analysis, Of Medicines and Markets examines the efforts of local health activists and transnational campaigns to improve access to life-saving medicines in Central America, a region where countries have traditionally classified health as a human right. The Central American Free Trade Agreement (CAFTA), however, has recently imposed far-reaching intellectual property laws that safeguard corporate monopolies through patents and extended test data protection. CAFTA sets up a conflict between corporate rights and human rights, but the nature of that struggle is far from obvious. Paradoxically, human rights advocacy seems to reinforce the neoliberal market principles that inform CAFTA, raising deeper questions about rights, power, and social justice activism in the free trade era.

A sociologist by training, before becoming an academic, Angelina Snodgrass Godoy worked at Amnesty International and is critical of top-down approaches that ignore the experiences of local actors. Instead, Godoy emphasizes a “horizontal” or “bottom-up perspective” (10), focusing on the diverse ways people conceptualize and utilize rights claims as part of situated struggles. This emphasis will be familiar to anthropologists who have long grappled with the tensions between the universal and the particular, and more recently the global and the local. While anthropologists accustomed to ethnographic thick description may complain that the book lacks historical depth or cultural nuance, this is no reason to ignore Godoy’s superb integration of theory and evidence, and, indeed, would be missing the point. Of Medicines and Markets moves between Costa Rica, El Salvador, and Guatemala, but the nation-state is not the relevant unit of analysis. Godoy assesses the strengths and weakness of human rights in an era when global capital reigns supreme, and for her the relevant contexts are the transnational forces shaping struggles over rights.

To this end, she provides an excellent analysis of free trade and human rights as parallel global paradigms. As free trade rose to prominence, seemingly based on neoliberal ideologies that emphasize unregulated markets and competition, corporations have pushed ever harder for intellectual property protections that shield corporate monopolies. This underscores how terms such as “neoliberalism” have lost coherent meaning, with “free trade” policies instead representing “the naked defense of powerful economic interests” (32). Parallel to the rise of free trade, early concerns with social and economic rights faded from the international human rights agenda, which matured to prioritize individual civil and political rights. This liberal, state-centric model now seems inadequate to fight the structural violence enacted by corporate policies and free trade regimes.

Nevertheless, rights talk has expanded exponentially, with accompanying dilemmas. For example, struggles over the right to health are testing the limits of the human rights paradigm, especially in poverty-stricken Central American countries. Human rights campaigns are most effective when they create a narrative of injustice centered on individual victims who have suffered at the hands of a heartless, egotistical perpetrator. But what about a complex system of laws and policies that uphold corporate monopolies at the expense of people who can’t afford life-saving medicines? The elusive impacts of intellectual property have led many transnational rights advocates to argue that corporate monopolies lead to rising drug costs, thereby creating harm. They contend that increased competition will bring costs down, and presumably improve access. This argument not only draws on ideas about free markets, but it assumes that markets are competitive and innovative, and appears quite consistent with the neoliberal policies undermining public health systems in Central America.

The extent to which human rights advocacy unwittingly reinforces free trade is Godoy’s central concern, and she argues that this contradiction undermined activists’ efforts to oppose CAFTA’s intellectual property provisions. Many Central American health activists ignored campaigns by transnational advocacy groups raising concerns about intellectual property and access to medicines. Local health activists are steeped in a tradition of community-based healthcare, seeing health as part of a larger fight against poverty and inequality, a fight to strengthen public health systems and ensure social welfare. Transnational campaigns tended to focus on drug prices and seemingly embraced market-friendly arguments, while additionally creating alliances with national generic drug manufactures, themselves among the local business elite. Inconsistent with more local longstanding goals and strategies, this approach alienated Central American health activists.

Tracing the contradictory outcomes of human rights advocacy also takes Godoy into the courtroom, where patients have won access to patented medicines by pursuing right to health arguments. Lacking faith in the state’s ability to ensure the safety of generics, many patients prefer expensive, brand-name drugs. Often influenced by industry-funded patients’ associations or slick advertising, they perceive brand-name drugs as more reliable than the equivalent generics purchased by the public health system. Courts have been sympathetic to the right to health argument and a growing number of patients pursue individual cases to demand brand-name medicines. This trend is siphoning limited public health resources while benefiting pharmaceutical companies, whose “monopoly is upheld during the patent period by intellectual property law and following its expiry by human rights law” (120).

By carefully documenting such incongruous outcomes, Godoy provides an insightful roadmap through the troubled terrain of intellectual property and health activism in Central America. While targeting an audience of human rights and health advocates, this well-organized book is suitable for courses on political and legal anthropology, human rights, globalization, and social movements. Sophisticated theoretical discussion makes this book most appropriate for graduate level seminars or advanced undergraduate courses, and ideally readers should have some background knowledge about Latin America. Ultimately, Godoy shows that human rights advocacy has changed radically in the era of free trade. Will it be possible to envision alternative models of human rights and transnational advocacy, models that truly advance social justice and the rights of people in the face of hegemonic corporate rights? This is a question she leaves readers to ponder.

Thomas W. Pearson, University of Wisconsin-Stout

Godoy, Angelina Snodgrass. Of Medicines and Markets: Intellectual Property and Human Rights in the Free Trade Era. Stanford University Press, 2013. Read More at Stanford University Press

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