Why land rights? An answer in two days…

By Kevin Murray

On December 7 & 8, the Program on Human Rights and the Global Economy (PHRGE) held its 12th Human Rights Institute at Northeastern University School of Law (NUSL). The two-day event, entitled “Land Rights in the Era of Land Grabbing: The Land Tenure Security Index” was based on the work of Visiting Scholar, Alfred Brownell, a Liberian human rights and environmental lawyer.

After a warm welcome from NUSL Dean Jeremy Paul, Brownell opened the Institute with a powerful call for attention to the global problem of insecure land rights. For PHRGE’s land expert, in both rural and urban environments, it is difficult to secure any basic rights without secure access to land. He included in his answer to the question, “Why land rights?” a request for a moment of silence in memory of human rights defenders killed in 2017 defending the land rights of vulnerable communities.

From there, the Institute held two expert panels, designed to educate participants on key land rights issues and introduce the idea of a land tenure security index. The first, entitled “The Advocacy Power of Social Indexes” was moderated by Jonathan Kaufman, Executive Director of Advocacy for Community Alternatives and included presentations by: Malcolm Childress, Co-Director of the Land Alliance, and head of its (PR)Index Project, Irit Tamir, Advocacy Manager at Oxfam America, Nicolas Tagliarino of the Land Portal Foundation (participating remotely from The Netherlands), and Chloe Ginsberg, Tenure Tracking Associate at the Rights and Resources Initiative.

The panel established that there are a variety of organizations gathering and organizing invaluable information on land tenure, and pursuing their own strategies to get this information to the people whose land rights are under threat. Ms. Tamir’s described her organization’s “Behind the Brands” campaign, which created a social index to compare the land tenure sensitivity of several globally-prominent food and beverage brands. The campaign made sure that its index rested on credible information, organized and presented in a transparent and accessible way. By delivering this information to the companies, the press and Oxfam America’s own constituencies and allies, the organization was able to leverage important changes in some company policies, most notably the land tenure protection policies of Coca-Cola.

The second panel was designed to discuss the challenges and opportunities facing efforts to create a land tenure security index. Professor Shalanda Baker of NUSL and Northeastern’s School of Public Policy, moderated presentations by Independent Land Tenure Specialist, Liz Alden WilyTéodyl Nkuintchua Tchoudjen, Regional Technical Advisor, Citizen Voices for Change: CongoWard Anseeuw, Knowledge, Learning and Innovation Senior Technical Specialist (joining remotely from Rome), International Land Coalition and Peter Veit, Director of the Land and Resource Rights Initiative, World Resources Institute.

This panel built nicely upon the foundation created in Panel One by providing information about more projects designed to gather and disseminate tenure-related information, while giving more attention to the challenges in the work. Mr. Tchoudjen, a Cameroonian national with long experience in the land sector, across the African continent, described the fascinating experience of a network of African organizations that set out to create a “land tenure index” with a focus on making the information it gathered relevant to organizations and organizers directly engaged in land struggles and efforts to reform land laws. They succeeded in gathering a great deal of information, but, due to resource limitations, were unable to take the next step of making that information accessible to directly-affected communities.

One could not witness these two panels without being impressed with the technical achievements of projects such as the International Land Coalition, which has documented and analyzed over 200 land-relevant indicators in ten categories, or the Landmark Initiative of WRI and others, which has achieved detailed maps of the state of indigenous land holdings around the world. At the same time, the relative lack of collaboration among these projects was equally notable, as was the recurring problem of how to make the extraordinary cache of data available accessible to people faced with dispossession.

Chris Jochnick of Landesa, topped off the first day with a magisterial keynote speech entitled, “Land Rights is the Human Rights Issue of the 21st Century.” Jochnick drove home the close connection between land rights debates and the human rights concern that drives PHRGE’s mission. Using examples from around the world, Jochnick reinforced the sense of urgency around land rights that had been building throughout the day. He also described the progress of efforts to define and recognize a human right to land within the international rights framework. In a global scenario that does not always inspire confidence, Jochnick highlighted points of light that serve as the basis of his optimism that the problem of land rights can be addressed effectively through civil society empowerment and collaboration, as well as thoughtful engagement with state authorities.

In a lively question and answer session, participants encouraged Jochnick to address more facets of the land question, while questioning some his ideas, such as the contention that positive engagement with government at all levels is, in fact, a viable strategy, in most cases. The discussion provided the perfect capstone to a fulfilling day.

Day Two began with an information side meeting to discuss the possibility of bringing more financial resources to the support of land rights work. Participants noted that, if the general contention of this Institute regarding land rights and human rights was correct, then the human rights funding community might be a good location for a fruitful analysis of the resource requirements of effective land rights work. To date, land rights work is not a high priority of such funding agencies, and the participants were not aware of any donor affinity group with the mission of promoting such discussion among human rights funders.

Participants agreed to work together to develop a rationale for more involvement in the land rights sector by human rights philanthropy, and to pursue the possibility of proposing panels at appropriate funder convenings to discuss this issue.

Day Two of the PHRGE Institute brings together a smaller group of academics, advocates and activists to work intensively in a workshop format to make progress on some of the issues raised in the Day One panels and keynote. In the case of this Institute, PHRGE had put forth some ideas of the way forward to developing more effective land rights advocacy tools using existing information in new ways.

As he had on Day One, Alfred Brownell opened Day Two by introducing the objectives of the day and describing PHRGE’s plans around the organization and facilitation. The 30 participants in Day Two, who included nearly all of the panelists from Day One, decided to stay together as a group, rather than break up into small groups.

The morning was time for a wide-ranging reflection on land rights advocacy and the gaps in the projects described and discussed on Day One. Since one of the things the PHRGE proposal suggested as a next step was some form of ongoing collaboration on improving tenure tools, the afternoon discussion focused on this issue of next steps, as well as the ever-present issue of how all of this amazing information becomes relevant to the real lives of people struggling to hold onto their land.

The idea of “co-creation,” or involvement of end users in the design and creation of tenure tools from the very beginning emerged as a potential improvement over the approach of developing the tools and then working to make them relevant to very concrete land disputes.  Liz Alden Wily focused the discussion even further with her own assessment of the possibilities of developing a new type of tool on the basis of an assessment of the value of existing indicators. Jonathan Kaufman questioned the connection between this apparently “technocratic” approach to manipulating existing indicators, and the commitment to co-creation, and Malcolm Childress responded that this apparent contradiction was actually the huge opportunity.

Based on the identification of this potential opportunity, several of the people and organizations in the room expressed their interest in bringing their data and expertise into the kind of co-created process envisioned by the discussion. The event ended with participants expressing their sense of what they would be taking back to their work from this discussion. Feeling the sense of the room that ongoing process with both necessary and possible, Mr. Brownell closed the event by sharing his appreciation for all participants and his optimism that ongoing collaboration among those present could bring real change for people like the communities he has been representing in West Africa over the past two decades. As always, time will tell…

Kevin Murray is the Executive Director of
the Program on Human Rights and the Global Economy


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PHRGE Faces the Land Rights Imperative

Land rights is the human rights issue of the 21st century.

So insists Chris Jochnick, C.E.O. of Landesa and keynote speaker at PHRGE’s 12th Human Rights Institute to be held at Northeastern University School of Law on December 7 and 8. Jochnick will be joining a group of academics, activists and advocates to discuss the issue of land rights from a human rights perspective. Past PHRGE Institutes have focused on water rights, human rights cities, domestic violence, education reform and a host of other cutting-edge social issues.

This year’s Institute highlights the work of PHRGE Visiting Scholar, Alfred Brownell who came to Boston with his family almost exactly one year before this year’s Institute. The Brownell family’s arrival at Logan Airport on the coldest day of 2016 was not a long-overdue vacation visit to the Hub.

Brownell’s legal work to defend the land rights of Liberian communities threatened by land “grabs,” had earned him the enmity of government officials and palm oil operators alike. Bad feeling quickly escalated to ugly threats and with the help of ESCR-Net–a global network of organizations working on economic, social and cultural rights–and PHRGE, Mr. Brownell, his wife and two of their children were able to relocate to the Boston area.  Alfred took up residence at Northeastern as a Visiting Scholar affiliated with PHRGE.

Mr. Brownell is re-defining what it means to be a Visiting Scholar at Northeastern. Over the past year, he has given numerous talks at local universities, involved a growing group of Northeastern students in his research work on land issues and–through his contacts and commitment, greatly deepened PHRGE’s work in the area of land rights. The idea for this year’s Institute emerged from that engagement.

Soon after setting up shop at Northeastern, Alfred expressed interest in the idea of a Land Tenure Security Index that would provide land activists with a powerful tool that would allow them to compare the efforts of various governments to secure the land rights of their people. Brownell’s organization in Liberia, Green Advocates, is an environmental law practice, and the green advocates bring this environmental perspective to their work on land. They see a strong connection between the dispossession of forest and other rural communities, environmental degradation and climate change. From this perspective, land grabbing, regardless of the objectives of the grabbers, has effects well beyond the directly-affected communities. Policy makers emphasize the need to increase community resilience in the face of climate change and the resulting surge in natural disasters. Securing community land rights would be a huge step in the direction of community resilience.

“I’ve seen what people have done with tools like the Corruption Perception Index, and I think we could use a Land Tenure Security Index in similar ways,” said Brownell in explaining his interest in the idea. He immediately began working with NUSL law students on a “scoping” study to find out what work was being done to create such a tool. He first realized the impressive obstacles to creating this sort of index, and he discovered to his mild surprise that there were several projects to gather land-related quantitative data and put that information at the service of land advocates. One day in the early summer he said that it would be great to bring some of these people together with others interested in land rights to exchange experiences, learn from each other and see if stronger collaboration might hold the key to moving the work forward. The 12th PHRGE Institute was born.

Mostly through Alfred’s powers of persuasion, PHRGE has been successful at gathering many of the key people involved in the research Alfred has been examining. One needs persuasion to get people based in Africa to Boston in December. Téodyl Nkuintchua of the Congo Basin Forest Monitoring Program, Liz Alden Wiley of Land Rights Now, Peter Veit of the World Resources Institute and Irit Tamir of Oxfam America are only a few of the outstanding researchers and advocates who will be joining us. Francis Colee of Alfred’s own, Green Advocates, Liberia will also be present. The full Institute program is available online.

As always, Day One of the Institute will be standard conference fare, with two provocative panels and Jochnick’s much-awaited keynote. Then, on Day Two, a smaller group of participants will roll up their sleeves and spend the day in a workshop format discussing ideas presented by PHRGE and others regarding the way forward toward a tenure security index. The Institute promises two days of connection, learning and, hopefully, some agreement on steps to be taken together to respond to the micro and the macro threats represented by large-scale land acquisition.

If you can make it Boston, there is still time to register for the Institute. Can’t make it, but would love to see the Day One talks? All Day One Activities will be broadcast live on PHRGE’s Facebook Page.

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Island Prison: The Right to Freedom of Movement on Lesvos, Greece


Arash Hampay photo

By Hannah Eash-Gates

On a Monday evening in late August, Afghan refugees gathered in Sappho Square in Mytilene on the small island of Lesvos, wearing shirts with the date they arrived in Greece. Many shirts revealed an arrival date well over a year ago, yet these men have been trapped on the island while they wait for a decision from the Greek Asylum Service; their lives in total limbo. This type of action has become a common occurrence on Lesvos. These Afghan men were protesting in solidarity with others who protested in mid-July and were subject to brutal police beatings and arrests. The July protesters simply asked that the Greek government follow Greek and international law and allow freedom of movement within Greece for refugees.

Throughout the late summer of 2017, around one hundred refugees arrived on Lesvos every day, outpacing 2016 levels. The largest camp, Moria, is currently ‘housing’ two-and-a-half times more people than its capacity of 1,800, and the island has a dire shortage of medical care and legal aid. Despite deteriorating conditions, around 7,000 refugees remain trapped on the island, some illegally detained while their asylum applications are still pending, and nearly all unable even to travel to the mainland Greece to access the greater resources available there.

The EU-Turkey deal of March, 2016 may have been legal in its conception, but it has resulted (among other serious consequences) in the near total lack of freedom of movement of refugees, in violation of international and Greek law. Article 12 of the International Covenant on Civil and Political Rights (largely echoed in the European Convention on Human Rights) clearly states that any person “lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his [sic] residence” subject only to those restrictions necessary to protect national security or safety.

Further, Articles 26 and 31 of the Convention Relating to the Status of Refugees affirm the obligation of States to allow refugees freedom of movement, and prohibits penalizing persons who enter a State irregularly, providing that they register their presence with the authorities. Per the Office of the High Commissioner for Human Rights, any derogation of the freedom of movement must not only be necessary, but must be narrowly tailored and explicitly stated and justified in domestic law. Greek law contains no such provisions, and the Greek Constitution itself guarantees in Article 5 full protection of freedom for all persons, regardless of nationality.

One could argue that applicants for international protection are not, strictly speaking, “refugees” until there is a positive decision on their application, and therefore are not “lawfully within the territory” as required by the above-mentioned legal instruments. The European Union, however, lays out their detention policy for applicants in a directive stressing the importance of being in “accordance with the international legal obligations” laid out in Article 31 of the Refugee Convention, clearly implying that applicants should be considered refugees for the purposes of detention policy. Additionally, the law requires that applicants be treated like other foreign nationals in significant ways. Under Greek Law 4375, applicants are issued an International Protection (IP) Applicant Card upon registration with the Greek government, which serves as their legal identification document. Applicants are allowed to hold employment and remain in the country as long as they hold a valid IP card.

The restriction to the island is disastrous for the refugees on many levels. The support systems for refugees put in place by the Greek government, UNHCR, and nongovernmental organizations are often poorly planned and managed. The flow of refugees has overwhelmed these systems. The camps in which refugees live are plagued by frequent loss of electricity and water supplies. Refugees stand in lines of hundreds of people to get a small amount of food. The availability of medical care for physical and mental illness is at crisis levels, and there are only a handful of Greek lawyers to represent thousands of applicants in their asylum applications and appeals. It can take anywhere from a few months to over a year and a half to receive a decision that, for many, is literally the difference between life and death.

Arash Hampay photo

Individually, refugees are susceptible to mental and physical deterioration. Though it operates in the same legal framework, Greece approves far fewer asylum applications than other EU countries, which can exacerbate feelings of hopelessness among refugees in Greece. Many refugees have survived traumatic events or otherwise suffer from mental illness. Indefinite confinement within fenced-in camps on a small island in a country with a depressed economy only re-traumatizes them. Seemingly constant harassment from police, the lack of any predictability in the asylum application process, and violations of human rights lead to frequent protests, like those in Sapphos square, or hunger strikes lasting up to forty-one days. Granting refugees freedom of movement within Greece would not cure all that infects the current situation on Lesvos and the other Greek island “hotspots”; many similar issues plague the camps on the mainland. However, allowing them basic freedoms, such as the choice of where to live, some agency, and the possibility of accessing resources on the mainland could be an important step in the right direction.

On October 19, 2017, refugees again occupied the Sappho Square, many of them families with young children who do not feel safe in the overcrowded camps. As of November 16, they remain there in protest, waiting for a response to their pleas.

Hannah Eash-Gates is a third-year student at Northeastern University School of Law. She recently worked as a PHRGE Fellow with the Lesvos Legal Center providing legal and other support to refugees arriving on the island. 

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Austerity worsens Puerto Rico’s pain

By Peter John Cunningham

I still remember being excited before Hurricane Ivan, the first major storm to pass through Jamaica since Hurricane Gilbert devastated the island in 1988, almost 30 years beforehand. Ivan hit the country in September of 2004, a few months after my ninth birthday. The preparatory process thrilled me: buying sheets of plywood to board up the windows, stocking up on food, necessities, medical supplies and random goodies, and even moving the chicken coop into a spare room out back to protect the birds. At nine, the most appealing part of the whole affair was the prospect of days, or even weeks, without school; I could hardly believe my luck. As the storm battered the island, we retreated into our safeguarded home and waited to assess the damage.

The wind and rain roared and crashed for hours and hours, but thankfully our home survived. Many others were not so lucky. My excitement quickly disappeared in the aftermath of the storm, as the devastation became apparent. The final death toll stood at 17, while the storm cost the country approximately USD $575 million in property damage, not to mention the destruction of infrastructure; we were without power for one week, and without running water for longer than I can remember.

A quick drive around Mandeville, our quiet town nestled in the country’s inner hills, confirmed my parents’ worst fears. Roads flooded higher than the bonnet of our car, humungous trees blown onto the houses they once shaded and countless other visual examples of the destruction opened my eyes to the real consequences of a powerful storm. That was 2005, when category five hurricanes were rather rare and never struck twice in quick succession. Today, the scientific consensus is that the effects of climate change significantly strengthen already-powerful storms, a process that will undoubtedly worsen as climate change becomes more pronounced.

In the space of two weeks, two hurricanes above category four, Irma and María, struck another Caribbean island, Puerto Rico. The hurricanes left the island in a state of humanitarian crisis, with no option but to reach out to the United States and the international community for help. One would think that the country’s status as a U.S. territory would motivate a swift, efficient response to the crisis. Despite the Trump administration’s lauding of the relief efforts, the response by the U.S. government has been slow and inadequate, in stark contrast to the prepared and swift responses to Harvey and Irma in Texas and Florida respectively. The President has gone so far as telling the suffering people of Puerto Rico that they are lucky to not have “faced a real catastrophe like Hurricane Katrina” and has verbally lambasted the mayor of San Juan over her criticism of the U.S. response. With this unstable political atmosphere in mind, Puerto Rican officials must feel as though they must tread lightly or risk losing out on further aid from the U.S.

When viewed in the context of the existing U.S.-Puerto Rican economic and social relationship, the lackluster response by the U.S. government is not particularly surprising. The “special situation” of Puerto Rico has never included full citizenship rights for people living on the island, while the imposition of restrictive economic laws by the federal government since the acquisition of the territory have created a heavy dependence on the mainland economy and contributed to increased indebtedness. The combination of this economic dependence and questionable decisions by Puerto Rico’s political leaders have forced the island to shoulder nigh-insurmountable debts in recent years. In the face of this worsening debt crisis, the U.S. imposed new austerity measures on the island, hampering development and undermining social and economic rights on the island. Before either of the recent storms touched Puerto Rico, the country already faced a serious social crisis. The damage caused by the hurricanes has only served to bring these existing issues to light.

Puerto Rican Governor Ricardo Rosselló told reporters that it may take months to restore power to the island due to an outdated power grid, which is emblematic of infrastructural problems that occur when a territory managing strict austerity measures is battered by natural disaster. The U.S. government has far, far more to do in the relief and rebuilding efforts for the battered island. Whether the Administration will face that responsibility is, of course, another question.

Born in Jamaica, Peter John Cunningham is a fifth-year undergraduate at Northeastern University. He is currently a work-study Research Assistant at PHRGE. 


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Do Pharma Companies Still Deserve Legal Protections?

By Matt Barg

Over the last several decades, there have been intermittent, but unsuccessful, efforts to rein in the pharmaceutical industry with legislation and increased regulation affecting pricing, corporate tax, and intellectual property protections. Pharmaceutical corporations invariably argue that such actions would harm innovation. The industry’s contention under this theory is that profits need to be higher than what the market would normally demand in order to supplement research and develop (R&D) costs. If their profits are not protected, there will be no incentive for pharmaceutical companies to innovate, either by developing new drugs or making novel improvements on existing drugs. As a result, pharmaceutical companies are the beneficiaries of, for example, 20-year patent protections, R&D tax credits, and minimal regulation of drug pricing in order to ensure higher profits to augment R&D spending and bolster innovation.

While this seems to be a logical theory to boost innovation, are pharmaceutical corporations actually allocating their profits for R&D? Or, are these corporations exploiting a longstanding and well-accepted public policy stance in order to reap greater profits? A 2017 study by the Institute for New Economic Thinking (INET) suggests the latter.

The study shows that instead of allocating profits to innovation, pharmaceutical companies are spending almost all of their profits on delivering dividends to stockholders and repurchasing their own corporate stock (buybacks). In recent years, pharmaceutical executives have increasingly shifted their business models away from drug innovation to one that is preoccupied almost entirely with finance. While various factors that have led to this shift, one of the most apparent reasons for the shift is that pharmaceutical executives have strong incentives to move in this direction as they receive much of their compensation in stock.

The industry contends that more drug innovation is beneficial to the health of the U.S. and the rest of the world. Perhaps, but pharmaceutical companies are, in fact, allocating almost all of their profits to buybacks rather than spending on R&D for developing new drugs. The INET study shows that on average, the 18 pharmaceutical companies currently in the S&P 500 Index distributed 99 percent of their profits to shareholders between 2006 and 2015—50 percent as buybacks and 49 percent as dividends.

In his Harvard Business Review Article,  one of the authors of the INET R&D study, William Lazonick, insists the that personal incentivizes to do buybacks in order to increase stock prices provide the only logical explanation for mass stock buybacks. From 2012 to 2015, stock-based pay for pharmaceutical executives accounted for roughly 90 percent of their compensation. Executive pay packages reward stock-price manipulation and speculation over the company’s innovation successes.

Pharmaceutical companies are now growing their businesses through corporate finance, rather than by innovating and producing new drugs. They prefer to acquire other companies for their drugs and innovations. The companies have also notoriously acquired or merged with another company incorporated in a country with low corporate tax rates and favorable tax policies, such as Ireland, Luxembourg, and the Cayman Islands, in order to reduce their tax bills. Such transactions are known as tax inversions. The pharmaceutical industry may have been built on scientific innovation, but the industry has now become overwhelmingly preoccupied by finance, leaving innovation to fall by the wayside.

The short-term thinking focused on bolstering stock prices rather than innovating new drugs could have tremendous implications for access to medicine across the globe. Currently, there is a growing anxiety that the pharmaceutical industry is going through a productivity crisis for discovering new drugs. Over the past 15 years, R&D investments by pharmaceuticals companies have led to few new blockbuster drugs, even as the 20-year patents on the previous generations of drugs expire. Companies like Merck and Pfizer have been living off of patented drugs with few new drugs in the pipeline. Pfizer, for example, has not launched an internally developed product since 2005, with only four internally-developed products launched between 2001 and 2005.

During Pfizer’s attempted merger with Allergan, which the Obama Administration later blocked, Pfizer CEO Ian Reed said the company’s U.S. tax bill put it at a “tremendous disadvantage” in global competition. Reed said, “[w]e’re fighting with one hand tied behind out back.” However, from 2011 to 2015, while Reed was CEO, Pfizer’s distributions to shareholders were 4.7 times its U.S. tax payments. During this same time period, Pfizer also spent $45 billion in buybacks and Reed’s annual compensation averaged $54.9 million (81 percent from stock options and awards). Given these figures, it’s difficult to believe that Pfizer was strapped for cash.

The pharmaceutical industry’s steadfast R&D argument is flawed, if not a complete fallacy. It can no longer justify the multitude of profit protections the industry is afforded. In light of the financialization of the pharmaceutical industry, policy makers need to reconsider the rationale for the legal regime providing the industry certain protections. Global health is at stake.

Matt Barg is a student at Northeastern University School of Law. Matt did research on the pharmaceutical industry while working as a PHRGE Fellow with Oxfam America’s Private Sector Office in 2017. The opinions expressed in this post are his own.


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Dear Mr. Trump: More Monopoly Pricing in Developing Countries Will Not Reduce U.S. Drug Prices

By Jason Blanchette

Doctors Without Borders, US

Those of us who believe that access to medicines should not differ by wealth status are nervously waiting for President Trump to pursue what will likely turn out to be an industry friendly approach to pharmaceutical prices. I, for one, hope that it turns out differently than what is expected. Kaiser Health News first broke a story about discussions within a White House Working Group. One prominent talking point within the group concerned increasing patent protection outside the United States – which would further extend Big Pharma’s monopoly pricing into developing countries. They are talking about increasing monopoly protection outside the United States as a means of decreasing monopoly prices in the United States.

Framing foreign monopoly pricing protection as a means to reduce domestic pharmaceutical prices suggests that the enforcement of intellectual property (IP) rights in foreign countries would (supposedly) ensure “that American consumers do not unfairly subsidize research and development for people throughout the globe.” In other words, the high price of Research and Development (R&D) is the central cause of high pharmaceutical drug prices: If pharma executives increase their revenue elsewhere they will voluntarily lower prices in the United States.

This is nothing new: The policy priority of big pharmaceutical companies has long been to block developing countries from licensing generic drugs to increase the affordability of otherwise unaffordable medicines in their countries.


The approach is also aligned with decades of U.S. trade policy. The Office of the United States Trade Representative (USTR), has regularly sought to favor domestic industries—especially the pharmaceutical industry—by increasing patent protection in developing countries. But this could be the first time such trade policy has been framed as a domestic pricing policy by government officials so closely connected to the White House.

Much has been written about the Working Group documents since Kaiser Health News first wrote about them. Commentators point out the absurdity of the idea that discouraging competition would somehow decrease U.S. drug prices. They similarly question the notion that higher profits overseas would magically stimulate big pharma philanthropy toward U.S. consumers.

But I think something has been missing from this discussion that further highlights the irrational policy stance that underlies it. My public health education and experience leads me to evaluate this proposed  policy by considering how the differences between countries, regarding the most prevalent diseases, would inform discussion on pharmaceutical prices. At the very core of public health – what separates healthcare from public health – is that in public health we identify problems and solutions within groups of people by comparisons between and among populations.  The proud public health nerd in me keeps a copy of Geoffrey Rose’s highly cited article, “Sick Individuals and Sick Populations,” on my desk because of its simplistic way of highlighting the importance of cross-population comparisons.

World Health Organization (WHO)

The Working Group’s identification of the problem – outrageously high pharmaceutical prices in the U.S. – is in agreement with public sentiment and makes sense. We need only identify the problem’s underlying cause and assess whether or not the proposal – strengthening intellectual property protections outside the United States – might help solve the it.

The big pharmaceutical companies have little interest in designing drugs for the diseases most prevalent in developing countries, which is one of the reasons that those diseases have barely been researched. Over the past two decades, the disease profiles of multiple middle-income countries have shifted quite rapidly toward the profiles of the United States and other developed countries. That is, non-communicable diseases such as cancer, diabetes, and heart disease are becoming more common in these countries. In addition, the governments of many developing countries have been making great strides toward increasing access to healthcare, including access to medicines. These improvements have led to rapid growth in pharmaceutical spending in developing countries. These countries, termed by Big Pharma as “pharmemerging” markets, now account for roughly one-third of global pharmaceutical spending.

Because of the convergence described above, entrance into the “pharmemerging markets” does not require new Research and Development (R&D) by the pharmaceutical companies that have been thriving on developed countries> Instead, these markets offer expanded revenue for already existing drugs. However, this ability of the industry to spread the R&D costs of drugs over a larger sales base, drug pricing by pharmaceuticals in the United States continues to escalate, and is increasingly out of control. This trend the conclusion that pharma executives will charge whatever the market will bear (a high price when it is a matter of life and death). It certainly does not support, and probably counters, the conclusion that monopoly enforcement internationally would somehow reduce prices domestically.

Medicins Sans Frontieres, Canada

Per capita pharmaceutical spending in the United States is roughly twice that of other high-income countries even though . United States per capita pharmaceutical spending—which continues to grow at a rate higher than in other developed countries—is expected to reach roughly $2,000 by the year 2021. This is an important comparison because of the similarities between the United States and other high-income countries. As members of the World Trade Organization and state members of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the developed countries share similar Intellectual Property protections. Our pharmaceutical needs are similar because our populations suffer mostly from the same non-communicable diseases. And as high-income countries, we have similar abilities to pay outrageously high prices for pharmaceuticals.

What, then, could be the cause of the disparity of pharmaceutical costs? Answers to that question would require a different blog post, one centered on differences in domestic health policy.

Jason Blanchette is a third-year law student at Northeastern School of Law

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It Isn’t Just About Flint: Water As A Human Right in the United States

By Tanisha Canty

People are suffering from nausea, vomiting, diarrhea, parasites, hair loss, permanent neurological disorders, anemia; raw sewage pools in their yards, separated from the children’s toys by thin scraps of metal; even their livestock are diseased from grazing in sewage. When I read these descriptions, they elicited thoughts of developing countries, of remote villages in Africa and India, but certainly no place in the developed world. And then the author revealed these are the circumstances under which millions of people in the United States live daily, in Michigan, in Alabama, in Maryland, in California, and other places.  I could barely reconcile that knowledge with my perception of life in the U.S. People are losing their children and homes because they cannot afford to pay for water. For some who can afford water prices, the quality is so abhorrent that the water is essentially unusable.

The United States does not currently recognize the human right to water. The U.S. Department of State writes that “because the promotion of human rights is an important national interest, the U.S. seeks to hold governments accountable to their obligations under universal human rights norms and international human rights instruments.” A person can live at most seven days without water, but millions of people have to choose between consuming the water they have and potentially permanent illness. Without recognizing and enforcing a human right to water, we are signaling to those individuals that being put in the position of choosing between good health and consuming water is acceptable. But, because that choice, and all similar choices regarding access to quality water, are unacceptable, we must examine that U.S. government’s contention that it is not bound by the human right to water.

According to the International Court of Justice (ICJ Treaty, Article 38), the three primary sources of international law obligations are international conventions, international custom (termed customary international law), and the general law principles recognized by civilized nations. The U.S. position is that obligations are not binding until the treaty is ratified. Ratifying a treaty creates international obligations for the U.S. to protect and implement the rights established in the treaty. If the U.S. chooses to sign, but not ratify a treaty, then it is bound to refrain from measures that would contravene the purpose and goals of the treaty.  None of the agreements that the U.S. has ratified have expressly included a right to water for all people.

That position taken by the U.S. ignores the obligations created by international custom. The ICJ has held that to establish international custom, the practice must be “very widespread and [have] representative participation in the convention,” along with “virtually uniform practice…that demonstrates a general recognition of the rule of law.” To summarize, for a right to become international custom, it must be generally accepted and practiced, and supported by judicial opinions (opinio juris). The human right to water has been reinforced by regional courts, including the Inter-American Court of Human Rights, in multiple cases since its adoption in 2010. The human right to water satisfies the requirement of being supported by judicial opinion.

After nearly two decades of statements by United Nations bodies about the human right to water, the UN declared the years between 2005-2015 the International Decade for Action, “Water for Life,” citing the fact that 884 million people lacked access to safe drinking water, and 1.5 million under the age of 5 were dying annually as a result of water-and-sanitation-related diseases. Further, in 2010 the United Nations General Assembly voted in support of Resolution 64/292 formally recognizing the human right to water and sanitation. The resolution also urges states and organizations to make available financial and technological resources in efforts to provide safe, clean, accessible, and affordable drinking water and sanitation for all. Though U.S. abstained from voting on the resolution, the resolution passed with 122 votes in favor and 43 abstentions.

Following the right to water resolution, the UN adopted Resolution 15/9, affirming that countries have the “primary responsibility to ensure the full realization of all human rights.” As a part of that realization, the UN charges states with developing legislation, plans, and strategies for the realization of human rights obligations, specifically access to safe drinking water and sanitation. For these reasons, the human right to water has been universally accepted and practiced enough to satisfy the generality requirement of international custom.

Although the U.S. has not recognized the human right to water, it is a legally binding right under the international custom source of international law. What remains is for the government to take steps to provide the people of the U.S. with sufficient and sanitary water, and for officials to recognize that the people do have a fundamental right to water. Recognizing the human right to water at the federal level would provide a stronger legal basis for claims against localities in which the water sources are polluted and unfit for human use. But, most importantly, a human right to water in the U.S. would give all citizens the most fundamental right there is—the right to live.

Tanisha Canty is a second-year law student at Northeastern University School of Law

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