Monday, March 2, 2015

Pharmaceutical Monopolies under TRIPS-Plus

Is Competition Law the Solution?
By Ashley Dougherty
Ashley Dougherty graduated in December 2014 with a joint-degree (JD/MBA) from Albany Law School and Union Graduate College.  During law school, Ashley worked for General Electric, ACE Group, the Honorable Judge Kahn at the Northern District of New York, and has worked aboard in Tokyo for the international maritime firm TODA & Co. Prior to attending law school, Ashley graduated from the University of Florida with a degree in Political Science.
While at Albany Law, she was a competitor on the law school’s travel team for the Philip C. Jessup International Law Moot Court Competition, an editor for the International Law Studies Blog, and served as the president of the International Law Society.
Ashley is currently working at the NY State Assembly Minority Office as Associate Counsel on the Corporations, Energy, Transportation, and Economic Development committees.
This paper was prepared for Professor Halewood’s International Trade Law class

Developed countries pursue excessive intellectual property regulations when negotiating trade agreements. These so-called TRIPS-Plus provisions can create advantageous monopolistic forums for pharmaceutical companies that are unfair for developing countries.

One of the most recent examples of this is the U.S. and the Trans-Pacific Partnership (TPP).  There is a surplus of intellectual property provisions agreed upon in the TPP which promote unfair trade practices. These include data exclusivity provisions, prohibitions against parallel importation, decreased reasonableness of seizure of shipments which causes unreasonable delays, “evergreening,” and patent term extensions. Such provisions deter countries from accessing essential medicine, particularly HIV/AIDs treatments, which are crucial to many southern Asian countries.

Those provisions also decrease competition in the pharmaceutical industry by inhibiting countries with emerging pharmaceutical industries from entering the market. This directly hurts consumers because it causes prices to rise, delays the entry of generic brands into the industry, and hinders ease of access to essential medicines.

This paper looks at what can be done to solve these problems. Specifically, the paper looks to the plausibility of creating global antitrust laws, either internationally or within the trade agreement, to combat the unfair trade practices caused by the TRIPS-Plus provisions.
____________________________
To read the paper, open HERE.

Monday, February 16, 2015

"Just War"

Here are two essays on the concept of "Just War" prepared as an assignment for the International Law of War & Crime seminar at Albany Law School this past fall semester.
Just War Influence
By Nick Gargano
Nick Gargano is a third year student at Albany Law School. He graduated from Long Island University (C.W. Post) with a B.A. in History concentrating in military air and sea power.
Prior to law school, Nick worked in concert production touring around the world with well-known musical groups for 15 years thus, expanding his love for history and igniting his interest in working in the field of international law.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar. Read the Essay.


The Earthly City Must Hold Violence in Check
By Kate Roberts
Kate Roberts is a second-year student at Albany Law School.  She graduated magna cum laude from Iona College with a major in Political Science and minors in Psychology and Philosophy.
Ms. Roberts is a sub-editor on the Albany Government Law Review, and a student editor for the New York State Bar Association Environmental Lawyer. After her first year of law school, Ms. Roberts interned at the New York State Attorney General’s office in the Environmental Protection Bureau. In her free time, Ms. Roberts enjoys hiking, running, and cooking.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar. Read the Essay.

The Earthly City Must Hold Violence in Check

By Kate Roberts
Kate Roberts is a second-year student at Albany Law School.  She graduated magna cum laude from Iona College with a major in Political Science and minors in Psychology and Philosophy.
Ms. Roberts is a sub-editor on the Albany Government Law Review, and a student editor for the New York State Bar Association Environmental Lawyer. After her first year of law school, Ms. Roberts interned at the New York State Attorney General’s office in the Environmental Protection Bureau. In her free time, Ms. Roberts enjoys hiking, running, and cooking.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar.


Under an Augustinian argument, “by nature, no man has dominion over any other . . . by nature, we are not evil.”[1] Additionally, just war is “driven by a call to justice . . .” whereby the goal “is to repair that which has been torn asunder by a prior violence and to protect a community for which one has a responsibility.”[2]

Just war theory focuses on two issues: (1) jus ad bellum—the conditions that can justify recourse to war, and (2) jus in bello—the limitations on the methods that may justly be used in waging war.[3] Just war requires a justification not only for entering into a war, but also for the killing of enemy combatants.[4] According to many just war theorists, the deliberate killing of enemy combatants is only morally justified if the conditions of jus ad bellum and jus in bello are met.[5]

Jus ad bellum—the justification of war—is met with four conditions: (1) just cause; (2) declaration by a lawful authority; (3) appropriate proportion between the goals sought and the costs; and (4) war is the last resort.[6] Contemporary causes sufficient to justify war include individual and collective self-defense,[7] humanitarian interventions, and preemptive attacks.[8]

Just War Influence

By Nick Gargano
Nick Gargano is a third year student at Albany Law School. He graduated from Long Island University (C.W. Post) with a B.A. in History concentrating in military air and sea power.
Prior to law school, Nick worked in concert production touring around the world with well-known musical groups for 15 years thus, expanding his love for history and igniting his interest in working in the field of international law.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar. 



Despite having history and good foundation, the “just war” theory is open-ended. Early Christian thinker Augustine suggested that a “just war” is waged in order to “preserve or to achieve peace,”[1] while another Christian thinker, Thomas Aquinas, suggested that “the advancement of good or the avoidance of evil” was the principle justification for war.[2]

Although Christian thinkers proposed the just war tradition, it may be argued that the pagan military and its warriors abided by a code that originally influenced the “just war” theory when it came to humanitarian law. Here, it is suggested that Christian thinkers used the “just war” theory to justify Christians having the same morale of the pre-Christian pagans in reference to acts of war, as pre-Christian Rome prohibited war unless “just.” However, as Rome became formally Christian, the pacifist Christian culture had to adapt to being part of a military state.[3]

Despite the “just war” theory’s broadness, there are basic principles agreed upon within international law. John F. Coverdale[4] suggested that the basic premises are: (1) the conditions that can justify the recourse to war, internationally known as jus ad bellum; and (2) the limitations on the methods that may justly be used in waging war, known as jus in bello.[5]