The Federalist Society's Practice Group and Student Divisions and the American Branch of the International Law Association (ABILA) are pleased to present a panel on the future of international and national law under freshly inaugurated President Trump. This panel featred a lively discussion between leading international lawyers the Hon. John Bellinger and Associate Dean and Professor Rosa Brooks about whether international law will matter to the new administration. The panel was be moderated by Professor David Stewart.
This panel was part of the conference on International Law in the Trump Era: Expectations, Hopes, and Fears held on January 23, 2017, at Georgetown University Law Center in Washington, DC.
Panel: Will International Law Matter to the Trump Administration?
--Hon. John B. Bellinger, III, former Legal Adviser, U.S. Department of State and the National Security Council
--Prof. Rosa Brooks, Associate Dean, Graduate Programs & Professor of Law, Georgetown University Law Center
--Moderator: Prof. David Stewart, President, American Branch of the International Law Association (ABILA)
Intellectual property (IP) protections promote innovation and spur research and development into life-saving drugs and medical procedures. Indeed, the existence of robust systems of IP rights in Western industrialized nations is one reason the pharmaceutical industry and medical breakthroughs have flourished there. By contrast, drug companies have struggled in the developing world, where IP protections are either nascent or non-existent.
One would think, therefore, that global policy advocates would encourage strong, uniform IP protections to help ensure the continued development of innovate treatments and broader access to health care in emerging markets. But instead of pursuing this sensible course, an obscure United Nations (UN) body called the High Level Panel on Access to Medicines is poised to release a report that is likely to recommend scaling back IP rights worldwide. This would be a tragedy for millions of ailing patients around the world.
There is no doubt that a substantial need exists to improve access to medicines to the developing world. Approximately one in three patients in the developing world lack access to basic treatments. To solve this problem, the UN must focus on substantial barriers to access such as a lack of infrastructure and training. Yet the panel appears ready to ignore these barriers by myopically and mistakenly focusing on IP rights.
Established last year by UN Secretary General Ban Ki-moon to improve global access to life-saving medications, the Panel was tasked with a mandate “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.” Consistent with this charter, the sixteen-member Panel has reviewed proposals to address what it perceives to be a “misalignment” between inventors’ rights and “access to medicines, vaccines, diagnostics and health technologies.” The Panel is currently finalizing a report to the Secretary-General, which includes an analysis of the proposals and its recommendations. The Secretary-General, in turn, plans to make the report available to the General Assembly, and undertake unspecified further action.
Many leaks from the group’s proceedings confirm its plan to emphasize perceived problems with IP rights rather than consider other issues that might hinder access to medicine. The rumors became so pervasive that, in June of this year, the Panel issued an “Official Statement on Speculative Media Reports.” The statement merely avers that the Panel is still working on the report, but it does not in any way deny that the group’s focus is on what it perceives to be a disconnect between access to healthcare and IP rights.
The U.S. State Department has encouraged the Panel to shift its narrow focus on IP rights to tackle the real structural and economic problems that prevent access to health care in the developing world. The Panel should heed the State Department’s advice for one simple reason: There is no “policy incoherence” or “misalignment” between IP rights and access to health care.
For starters, the vastmajority of medicines that have been designated as essential by the World Health Organization (WHO)—350 of 375—are not even under patents. Rather, these medicines are currently available in relatively inexpensive generic varieties.
In addition, many life-changing breakthroughs in drug research and development are made possible only because of America’s (and other countries’) extensive protections for IP. These protections grant companies a period of market exclusivity for original products, providing an incentive for companies and their investors to invest billions in research and development of the next generation of medications. Indeed, where countries have recently adopted more robust IP protections—such as India and China—pharmaceutical development and partnerships with Western drug companies have flourished and improved access to medicine. Furthermore, strong IP protections reduce the incentives for companies to develop fake or counterfeit drugs, thus helping to ensure quality control in the developing world.
Ultimately, the Panel’s mandate to root out policy incoherence between IP rights and health care begs the critical question—do IP rights promote or hinder access to drugs and medical treatments in the developing world? The empirical evidence shows that IP rights improve access to health care in poorer countries. Therefore, the Panel should reconsider its marching orders and release a report that focuses on addressing the political, economic, and structural barriers to medicine in the developing world, rather than punishing companies that are responsible for putting life-saving products on the market. [Read More]
Vincent J. Vitkowsky's 2007 ILSA Journal of International and Comparative Law paper addressing the use of force against terrorists under customary international law offers an analytical framework that remains timely and relevant to the international response to the ISIS attacks on Paris:
State practice and patterns of cooperation over the last forty-five years have led to the development of rules of customary international law governing the use of force, in anticipatory self-defense, against terrorists and rogue state collaborators. Although the earlier general rules may have prohibited states from using force except in anticipation of an imminent attack, in more recent practice, the imminence standard has changed. States have initiated and cooperated in the use of force to extend self-defense to instances in which the possibility of an attack is not imminent, but merely expected.
Fugitive alerts issued by Interpol, the international law enforcement clearinghouse, can make it hard for fugitives to slip across borders. But the group’s “red notice” database, which can be reviewed by authorities across the world to identify people facing prosecution, is frequently used by authoritarian governments to control and persecute dissidents, human rights activists and journalists.
Because it is generally time-consuming and difficult for individuals to challenge red notices, they often have a ruinous effect on those most vulnerable to government abuse. Red notices can prevent individuals from being issued visas, they can bar them from legally crossing borders and even limit a person’s ability to travel abroad after he or she has been granted political asylum.