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Access to Remedy: Treaty Talks and the Terms of a New Accountability Accord
No full textFor this reason, the authors of this chapter contend that the BHR treaty negotiation must prioritize the question of remedies. This chapter traces the narrative of remedies in the recent efforts to negotiate a legally binding international instrument to regulate the conduct of transnational corporations (TNCs) in international human rights law. The authors offer a descriptive account of the different positions taken by various stakeholders on the question of remedies during the first session of the Open-ended Intergovernmental Working Group (OEIGWG) held in July 2015 in order to offer an objective evaluation of the overall inclusion, understanding and positioning of the concept of remedies in the treaty negotiation process. By analysing the public positions of civil society organizations (CSOs), victim groups and governments, the authors provide a historical record of the initial issues related to assuring an adequate remedy.
We argue that the proposed treaty must provide guidance to states on how to assist victims in overcoming obstacles to accessing remedies regardless of the size, nationality or location of the business enterprise implicated in human rights violations. The authors explore different options for including the right to remedy by looking comparatively at other treaty regimes and monitoring bodies. We believe that whatever is the outcome of the treaty negotiations with regard to an actual binding instrument, it is an important moment in solidifying the international right to an adequate and effective remedy. Finally, this unique opportunity could help to create a culture of accountability which also recognizes that a restorative justice approach will better respect diversity and pluralism through complementary dispute resolution processes while directly addressing power asymmetry between alleged victims and alleged violators.
First, we offer a brief overview of some of the present barriers to access to remedy. Next, we review the stand of different stakeholders involved in negotiating a BHR treaty and the range of perspectives presented at the initial round of treaty talks regarding access to remedy. We show that despite consistent reference to the issue of remedies during the talks, stakeholders did not appear to share a common concept of remedy. Having identified this challenge, we present a typology of the features of existing human rights instruments on the issue of remedies to provide a framework to inform future debates on how remedies could be incorporated into a legally binding international instrument. We explain the substantive right to remedy and the procedural requirements of various enforcement mechanisms of human rights instruments. Finally, we propose specific remedy provisions for a BHR treaty
Introduction and geographic availability of new antibiotics approved between 1999 and 2014
Get PDFDespite the urgent need for new, effective antibiotics, few antibiotics of value have entered the market during the past decades. Therefore, incentives have been developed to stimulate antibiotic R&D. For these incentives to be effective, geographic availability for recently approved antibiotics needs to be better understood. In this study, we analyze geographic availability and market introduction of antibiotics approved between 1999 and 2014
Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective
Get PDFIn private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral deals may be structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this literature, I draw inspiration and materials from comparative private-law theory. I then review a range of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements, and show how the use of private law analogies in the context of trade theory yields both analytical pay-offs and normative caveats. I conclude that the ongoing attempts to identify, within the framework of international trade law, actionable remedies in favor of non-parties to trade agreements are analytically helpful, but remain distributionally ambivalent and need stronger normative vectors
Race and Assisted Reproduction: Implications for Population Health
Get PDFThis Article emerges from Fordham Law Review\u27s Symposium on the fiftieth anniversary of Loving v. Virginia,1 the case that found antimiscegenation laws unconstitutional. 2 Inspired by the need to interrogate the regulation of race in the context of family, this Article examines the diffuse regulatory environment around assisted reproductive technology (ART) that shapes procreative decisions and the inequalities that these decisions may engender. 3 ART both centers biology and raises questions about how we imagine our racial futures in the context of family, community, and nation. 4 Importantly, ART demonstrates how both the state and private actors shape family formation along racial lines. 5 By placing a discussion about race and ART in the context of access to new health technologies, this Article argues that assisted reproduction has population-level effects that mirror broader racial disparities in health. In turn, this Article intervenes in a bioethics debate that frequently ignores inequalities in access when thinking through the consequences of ART.
Part I presents a case study of the Sperm Bank of California (SBC) to demonstrate how ART represents a new mode of governing the family that facilitates and encourages the formation and creation of monoracial families. 6 Part II borrows a public health analytic, the burdens of disease, 7 to explain how the (re)production of monoracial families has consequences for health at the population level, especially when placed in the context of racially disparate access to ART services. Ultimately, this Article concludes that ART, as it is currently accessed and utilized, maintains racial orders with regard to health given the inequality in access to these services.
Privacy’s Blueprint: The Battle to Control the Design of New Technologies
No full textEvery day, Internet users interact with technologies designed to undermine their privacy. Social media apps, surveillance technologies, and the Internet of Things are all built in ways that make it hard to guard personal information. And the law says this is okay because it is up to users to protect themselves—even when the odds are deliberately stacked against them.
In Privacy’s Blueprint, Woodrow Hartzog pushes back against this state of affairs, arguing that the law should require software and hardware makers to respect privacy in the design of their products. Current legal doctrine treats technology as though it were value-neutral: only the user decides whether it functions for good or ill. But this is not so. As Hartzog explains, popular digital tools are designed to expose people and manipulate users into disclosing personal information.
Against the often self-serving optimism of Silicon Valley and the inertia of tech evangelism, Hartzog contends that privacy gains will come from better rules for products, not users. The current model of regulating use fosters exploitation. Privacy’s Blueprint aims to correct this by developing the theoretical underpinnings of a new kind of privacy law responsive to the way people actually perceive and use digital technologies. The law can demand encryption. It can prohibit malicious interfaces that deceive users and leave them vulnerable. It can require safeguards against abuses of biometric surveillance. It can, in short, make the technology itself worthy of our trust.https://scholarship.law.bu.edu/books/1337/thumbnail.jp
Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India
Get PDFIn her compelling new book, Women\u27s Human Rights and Migration, Sital Kalantry challenges the idea that a women\u27s human rights framework offers a consistent and universal way to address complicated gender issues across countries. She is primarily concerned with the lives of migrant women in countries that respond to their social and cultural practices with harsh regulations designed to bring them in line with dominant ideas about gender equality. Kalantry focuses in on two issues in particular: sex-selective abortion and the veil as worn by Muslim women. Kalantry insightfully identifies a primary problem with these types of laws and regulations as decontextualisation, in which receiving countries assume that the practices of migrants in the new countries occur for the same reasons as they occur in their country of origin. Decontextualisation, Kalantry argues, does not take into account the diverse reasons that migrants may or may not continue social and cultural practices once they are in their new country. In turn, the laws and policies are frequently misdirected and harm or undermine women\u27s rights in the process
Understanding Environmental, Health and Economic Activity Interactions Following Transition of Ownership in Gold Mining Areas in Tanzania: A Case of Private to Public
No full textMining is an important source of revenue for many developing countries, however, the social, environmental and economic impacts of mining are often poorly monitored. The recent transition of a gold mine in Western Tanzania—from large-scale gold mine under private, multinational ownership, to medium-scale public and national owned mine with limited life length offers a prime opportunity to understand the implications of changes in ownership and scale on the local economy and community well-being. We conducted 44 semi-structured interviews with community members in four villages adjacent to the mine site. We find that the local economy and public service provision contracted in response to the mine transition and downscaling, with ramifications for food security and healthcare access. Community members also highlighted the lack of information surrounding the mine transformation. This illustrates that considering the post-transition phase of large-scale mines is important for providing long run sustainable livelihood strategies in mining communities
Rural Health, Universality, and Legislative Targeting
Get PDFHealth disparities are persistent and worsening for rural communities, which have smaller patient populations with higher rates of uninsurance and greater incidence of the diseases and deaths of despair. Hospital closures and provider shortages are more common than in urban areas, also contributing to worsening population health and crises in maternal and infant health. This paper posits that these disparities are tied to the unique rural features of space and population. Efforts to address persistent problems in health care through universal legislation, such as the ACA, have given rural communities important tools to address some long-standing health problems by improving insurance coverage, which facilitates better access to health for patients and more consistent payment for health care providers. But, some rural states have rejected the ACA’s effort at universality while seeking targeted legislation to fill the gaps left by that choice. Drawing on Skocpol’s work studying effective social programs, the paper suggests that state resistance to the ACA’s universality impedes efforts to address health disparities and that targeted legislation can only minimally improve rural health disparities without universal baselines
Tribute to Professor Mark J. Pettit, Jr.
Get PDFWhen the BU School of Law community lost Professor Mark Pettit, Jr. last summer, we lost a great teacher, perhaps the best law teacher in the United States. His classes sang even when he was not singing. I have an overwhelming feeling of gratitude at having been Mark’s friend and colleague for the past thirty-four years. When my friends at the Mandel Legal Aid Clinic at the University of Chicago Law School learned I would be teaching at BU Law, they urged me to seek Mark out. Mark taught there as a clinical instructor before he came to BU, and his former colleagues told me that Mark was a great person, a fantastic colleague, a great law teacher. Mark proved worthy of their praise on many different levels
The Body Politic: Federalism as Feminism in Health Reform
Get PDFThis essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act\u27s federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars\u27 arguments that equity in health insurance is essential for human flourishing