Abstract
The proliferation of international legal agreements on and between a whole gamut of areas, ranging from the environment, to trade and public health, attests to the continued transnationalization of policy domains. One central issue is whether and if so how the arrangements produce, reflect, reinforce, and solidify the (re)distribution of power and resources at the global level, especially as regards the global North vis-à-vis the global South, and how this might be challenged by the governed. Cloatre’s Pills for the Poorest provides a rich examination of the relationship between intellectual property (IP), particularly patents, and access to medicines for the poorest. The book is located within, and adds to, the broader legal, sociological and anthropological literature. As such the text deservedly appears within the prestigious Palgrave Macmillan Socio-Legal Studies series, which addresses a wide international audience. Although the book is slim, its contribution is weighty, timely, and convincing. Indeed, in this text Cloatre provides a fresh and exciting exploration of an otherwise well-explored area – the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and access to medication in sub-Saharan Africa – in part by using the largely unexplored situations of Djibouti and Ghana as the specific case studies.
These provide the book’s empirical foundation of detailed and insightful ethnography involving representatives of public authorities and social actors. In order to make sense of the information that is gathered Cloatre deploys actor–network theory (ANT). The latter is used to draw attention to law’s role in the enormously important issue of how medicines make their way to poor people in some of the most overlooked places. The author makes the convincing case that this matters not just for the people residing in the specific geographic locations of the case studies (the so-called least developed countries (LDCs) that are also often the least examined in extant scholarship), but also for other easily overlooked and vulnerable places. Attention to these margins is also underlined as important for what it tells us about the nature of things like medicines and knowledge, as well as law, and the ways in which they relate and interact.
As such the book’s central contribution and value to legal scholarship is methodological in that it uses novel insights and tools in order to examine the law’s operation. In making out its analysis of TRIPS, the book sheds further and much needed light on some of the key consequences of the growing tendency to develop international legal agreements. As I see it, foremost amongst these is the role of law in working with pre-existing social relations in order to frame issues as essentially nonpolitical matters in need of technical solutions. This benefits global commercial interests, which are insinuated within and through the technical, a situation that hurts those who are already vulnerable, in part due to the unequal global distribution of power and resources crystallized in those self-same transnational norms. In its own terms, this book helps to support this interpretation across the following chapters.
Chapter 1 lays out the perspective adopted from ANT, which is very similar and related to post-structuralism (especially that influenced by Foucault and Deleuze). Rendered within this methodology, a ‘toolbox aimed at empirical work’ (p. 16), TRIPS becomes viewed as being more – and other – than law in a formal sense; rather, it is understood as an assemblage that must be observed as and through empirical case studies, in this book those noted above. TRIPS, like any ‘thing’ (including people, collectivities, institutions, and law and practices) is taken to be created, made possible and transformed through heterogeneous social networks and relations: it is an indeterminate actor. Things (or/as actors) do not exist a priori and cannot be reduced to anything else. Instead they are effects of ‘fragile connections’ (p. 15) that ensures explanatory categories like power, knowledge, and capitalism are ‘effects rather than causes, they are part of the ‘explained’ or ‘to be explained’, rather than the explanatory’ (p. 15). Consequently, law, including TRIPS, can only be understood through its ‘entanglement with other social assemblages and the processes of repeated blackboxing and translation that occur around legal texts’ (p. 21) as they and their scripts circulate from the contexts where they are first drafted into contexts where they are to be formally transcribed – but also given new life in relation to quite specific local and evolving notions of disease, health care, and access. Blackboxing helps to render the scientific and the technical (including the juridical) invisible through their very success. The latter distracts attention towards the inputs and outputs of any particular system, rather than its internal workings and attendant normative dimensions, and consequently assists the naturalization and depoliticization of issues, frustrating recognition of their social construction and design, and the capacity to make alternative choices.
The translation of TRIPS as a global script to local iterations is traced in Chapter 2. Here, the focus is narrowed to Djibouti and Ghana and their implementation of TRIPS, which is revealed as being a process that was contingent on so-called microinteractions between actors, and where local expertise plays a crucial role in creating local possibilities. Ghana’s translation of TRIPS entailed the transformation of existing texts within a nascent IP domain, whereas Djibouti’s translation required the creation of new law with little or no such pre-existing domain. Both countries were required to take up texts that they had no role in drafting – a fact that underscores their disempowerment within global institutions and the salience of power relations to global law and regulation. Disempowerment is also apparent in the limited expertise and resources available locally, which make it even harder for the affected countries to exploit the public health friendly flexibilities within TRIPS, such as compulsory licensing of patent protected medicines.
Public health networks, the subject of Chapter 3, have proven especially important in that they are central to ensuring compliance with TRIPS. For Djibouti, implementation has been undermined by the absence of a punctual governmental response to TRIPS and segmented public health networks. In the case of Ghana, although some overlaps between IP and public health existed in specific institutions, the processes they are meant to follow are undermined by limited resources and a lack of interest in IP. Overall, in both cases TRIPS was transformed through its implementation into a ‘fundamentally different, and…less influential’ text (p. 89).
Chapters 4 and 5 deepen the analysis through a lucid and revealing examination of translation into health care system practice. The starting point here is the markets for pharmaceuticals in Djibouti and Ghana, with a focus on the position of innovator brands (those that tend to be protected under TRIPS) in relation to the availability and distribution of generics. Chapter 4 highlights an apparent paradox: despite the absence of a system for pharmaceutical patents in Djibouti, a situation that has only changed very recently (in the late 2000s and early 2010s), the health care system there actually became more reliant on (patented) innovator brands than generics (whether or not they are ‘off patent’ and can be therefore sold in compliance with TRIPS). Part of the explanation is to be found in the influence of the global pharmaceutical industry to ‘act at a distance’ (p. 114), especially through the close links with France, the former colonial master.
Individuals also play key roles, in that they often prefer and are in the habit of selecting innovator brands. This helps to maintain and even bolster the position of the pharmaceutical industry, but in ways that are far harder to counter, and which undermine government initiatives to favor generics, reduce costs, and maximize public health outcomes. Patents assist in the privileging of innovator brands over others. However, the operation and effect of patents has been more as silent regulatory tools, due to their very recent absence in national law. This is explained not by the patents directly, but rather by their functioning through ‘material connections rather than official texts’ and their travel ‘across fluid jurisdictional boundaries’ (p. 100). These connections include the weakness of shipping networks, the connections between Djibouti and other places where drugs are being produced in compliance with patents, the unreliability of many systems of transport for the importation of alternatives, the crumbling system of international donations, the absence of local labs where drugs could be tested, and the availability of alternatives facilitated (p. 114). Through these connections and relations TRIPS is given informal effect despite its institutional and formal absence, ensuring it is part of local choices. Patents account for the favoring of innovator brands, in which they are embedded, but they are also part of disfavored generics, despite recent governmental attempts to make them available to the poor.
The situation in Djibouti contrasts to the market situation in states in which patents are protected. Indeed, in Ghana, the subject of Chapter 5, government efforts to favor generics over patent protected medicines have been frustrated by discourses on counterfeits, including confusion over what they are and the relationship to generics, as well as on the ground realities, such a porous borders, genuine fears about quality, and insufficient governmental resources to monitor and regulate circulation. These prompt doctors and patients to prefer the patent protected medicines over generics, which in turn undermines efforts to reduce costs and widen publicly funded access to medicines. As another consequence, it appears that the pharmaceutical industry is able to use this situation to indirectly reinforce IP law and slow down the use of generics. Generics are seemingly located and understood in relation to – and campaigns and wider public health efforts for their use stymied by – the appeal and promotion of and trust in the origin of innovator brands on one side and distrust in low quality and potentially harmful counterfeits on the other.
Chapter 6 offers a commentary and reflection on the relationships between global movements, changing markets conditions and the reshaping of health and disease. This sheds light on the complex dynamics between the global, national, and local, and how they work to establish and mediate categories of health and disease and subject positions. Indeed, although those on the world’s economic fringes are most vulnerable, they are not without agency, despite their perilous position. This helps to account for some of the indirect, overlooked and even paradoxical consequences of international patent law on access to medicines that are traced in this book.
Across these chapters, the development and application of key insights from ANT in relation to IP law serves to nudge sociolegal and broader legal scholarship towards that specific perspective as well as the broader literature on Science and Technology Studies (STS). This latter literature seeks to inter alia bring out the normative in the technical and reveal key features that are all too often missed. As such this book also helps to facilitate the growing discourse between law and STS more broadly (most notably, Aronson, 2007; Daemmrich, 2006; Flear and others, 2013; Jasanoff, 2011). In doing so, it helps to weaken the disciplinary boundaries that frustrate awareness of the implications of law’s interaction with the material and ideational: how law is transformed through that interaction in diverse locations, with sometimes unintended and unpredictable effects, and in ways that impact on its efficacy and legitimacy.
To summarize, Cloatre’s book is an insightful and valuable addition to not just sociolegal studies, but also the broader literature on pharmaceuticals and the social implications of global trade. Pills for the Poorest demonstrates why and how methodological innovation beyond traditional and even socio-legal ways of thinking about law remains essential. Such innovation can help to reveal blind spots in our understanding of law’s production by and within, and interaction with, the social and political, and in doing so it serves to highlight that law is neither determinate nor reducible to those or indeed other things, but is rather part of a complex web. And arguably ‘the’ key task of this sort of innovation is to cast light on the consequences for those who are still too often, and even increasingly, overlooked: people who are (made to be) on the fringes of our neoliberal times, albeit often in ways that obscure the ways in which they are marginalized and even excluded. It is to be hoped that future work will continue to develop and usefully deploy tools that help to maintain scholarship’s engagement with this current – and seemingly natural and unchosen – reality. In that regard, attention to the transnational promises many further and essential case studies.