HealthLawProf Blog

Reflections on Agricultural Subsidies

Franziska Sucker (University of the Witwatersrand), Reflections on Agricultural Subsidies, SSRN (2021):

Many sub-Saharan African countries enjoy a static comparative advantage (that derives from climatic and other natural endowments) in several agricultural products, including traditional cash crops like coffee, cocoa and tea, as well as new products like legumes, pulses and sesame seeds. Yet, developed countries are the biggest exporters of these agricultural products. According to the United Nation Conference on Trade and Development (UNCTAD), this is largely ‘due to heavy subsidies to their agriculture. In fact, the inability of developing countries to compete with the subsidized agriculture of developed countries has turned them into net importers of food produced in developed countries’.

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Adaptive Approval of Drugs for Rare Diseases

Wendy Olsder (Eindhoven University of Technology), Tugce Martagan (Eindhoven University of Technology), Jan C. Fransoo (Tilburg University), Adaptive Approval of Drugs for Rare Diseases, SSRN (2021):

Problem definition: Adaptive approval is a new concept that aims to enable earlier patient access to new drugs. The concept of adaptive approval has been specifically proposed for rare diseases with unmet clinical needs. Although some stakeholders believe that adaptive approval is a promising opportunity for patients and pharmaceutical firms, others remain skeptical about its feasibility. This paper examines various concepts of adaptive approval that will likely impact its implementation in the upcoming years.

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COVID-19 Strategic Global North-South Divide: Access to Knowledge Quadrants Imperatives for Granting the WTO Waiver

Kunle Ola (Australian Catholic University), COVID-19 Strategic Global North-South Divide: Access to Knowledge Quadrants Imperatives for Granting the WTO Waiver, Eur. Intell. Prop. L. Rev. (2021):

This article discusses the current controversy at the World Trade Organisation (WTO) on the waiver of Intellectual Property Rights for COVID-19 vaccines and personal protective equipment. Predicated on the North-South divide and the need for access to vaccines and personal protective equipment by developing countries, an analysis of both sides of the WTO contention is undertaken against the background of access to knowledge quadrants namely, availability, visibility, accessibility, and impact. Arguments are framed around the Ubuntu and Utilitarianism which support the notion that no one is safe until we are all safe.

Australia: Lessons from a Reformist Path to Supported Decision-Making

Piers M. Gooding (University of Melbourne),  Terry Carney (University of Sydney), Australia: Lessons from a Reformist Path to Supported Decision-Making, SSRN (2021):

This chapter reviews Australia’s gradualist approach to implementing the ‘supported decision-making regime’ called for by article 12 of the UN Convention on the Rights of Persons with Disabilities. It critically evaluates statutory and non-statutory supported decision-making developments, the growing stock of conceptual and empirical research on the topic, and policy developments that challenge the ‘best interests’ principle behind substituted decision-making laws. While legislative reforms are modest and mainly confined to adult guardianship and mental health laws, the accumulated body of contributions is found to be extensive by global standards. The chapter shows that these efforts have proceeded – some more successful than others – to guarantee the legal capacity of persons with disabilities, expand the duties of third parties to recognise legal capacity, and adjust decision-making processes. It argues that Australia’s federal system of government enabled multiple ‘incrementalist’ reform initiatives to be developed, which time may or may not demonstrate to be effective in advancing the CRPD reform agenda regarding legal capacity, equality and disability

Accelerating COVID-19 Vaccine Production via Involuntary Technology Transfer

Olga Gurgula (Brunel University London), Accelerating COVID-19 Vaccine Production via Involuntary Technology Transfer, 102 S. Ctr. Pol’y Brief (2021):

This policy brief explains that the currently discussed proposals at the WTO related to increasing the production of COVID-19 vaccines, including the EU proposal to clarify the use of compulsory licensing and the submission by South Africa and India on the intellectual property (‘IP’) waiver, require complementary mechanisms to rapidly improve the production of COVID-19 vaccines that is urgently needed today. The key problem is that to accelerate the manufacture of COVID-19 vaccines, access to knowledge and know-how, which are protected by trade secrets owned by several pharmaceutical companies, is required. It is, therefore, important that governments implement an additional mechanism of compulsory licensing of trade secrets that would allow an involuntary transfer of COVID-19 vaccine technologies. Such a mechanism would be compliant with the TRIPS Agreement and be relevant both in case of the adoption of the TRIPS IP waiver and if such a mechanism cannot be agreed upon. While this mechanism must provide full access to the information necessary to manufacture the vaccine in question, it must also ensure the protection of the transferred trade secrets.

Business as Usual? Irish Courts, the Constitution, and COVID-19

Conor Casey (University of Liverpool), Const. Paths (forthcoming 2021):

This article documents the Irish Courts treatment of legal challenges brought against the Irish State’s response to the COVID-19 pandemic. I outline how the Courts have continued acting throughout the pandemic as a forum of legal accountability for actions taken by the executive and legislature. In playing this role, I suggest the judiciary have neither displayed notable signs of enhanced deference nor assertive scrutiny. Instead, Irish Courts continued to apply the generic legal tools of procedural and substantive administrative and constitutional law with their typical cautious, but not supine, attitude to reviewing political branch action. For the most part, the broad attitude of the Courts displayed thus far has been that the general rules of Irish public law still apply. Overall, I suggest it is fair to say Irish Courts have been a cautious but important legal check on arbitrary political branch action during the pandemic.

Health Data Privacy During Pandemic: Benefiting from Heath Data Without Compromising Health Data Privacy

Jawahitha Sarabdeen (Prince Sultan University), Health Data Privacy During Pandemic: Benefiting from Heath Data Without Compromising Health Data Privacy, SSRN (2021):

Health emergency during COVID-19 caused health authorities and authorized organisations to widely collect, store, transmit and use health data for research and public health purposes. Such use may limit the right to data privacy for the purpose of prevention of spread of decease and protection of public health. The limitation of data privacy, however, should have an appropriate balance. The European Union (EU) member countries are pioneers in implementing better data privacy protection. The EU member countries’ data privacy in general is enshrined in the European Convention on Human Rights (ECHR) (Council of Europe 1950), the Charter of Fundamental Rights of European Union (CFREU) and Data Protection Regulation 2018 (GDPR). The pandemic created an opportunity to look at the existing EU laws, regulations, and guidelines to understand the proportionate use of health data for public health in case of emergency. In Canada, privacy laws in general are non-harmonized for different categories of entities: private sector, public sector, and health sector entities. In the light of COVID-19, the regulators leaned towards creating exceptions in using, storing, and transmitting the health data for clinical and research purposes internally and internationally. Nonetheless, there is no clear guidance on how the usage is going to be balanced against competing interests. Saudi Arabia has provided protection for personal data in addition to limitation of such protection in case of national and international crisis as well. However, there is no provisions on how the limitation would be exercised and time limit of such limitation. Hence this research will analyse various laws and regulation in EU, Canada, and Saudi Arabia with a view to encapsulating the proposition of standard that could be used in enhancing public health by benefiting from heath data while ensuring acceptable protection of personal health data privacy.

The Duties of Occupying Powers in Relation to the Prevention and Control of Contagious Diseases Through the Interplay between International Humanitarian Law and the Right to Health

Marco Longobardo (University of Westminster), The Duties of Occupying Powers in Relation to the Prevention and Control of Contagious Diseases Through the Interplay between International Humanitarian Law and the Right to Health, 55 Vand. J. Transnat’l L. (forthcoming 2022):

This article explores the rules governing the prevention and control of contagious diseases in occupied territory under international law. Although the article refers to the ongoing COVID-19 pandemic, its scope is broader and encompasses instances of state practice that have occurred over the last two centuries. After a careful analysis of the relevant treaties and episodes of state practice, the article concludes that occupying powers have duties under international humanitarian law and international human rights law to prevent and control contagious diseases, through cooperation with the local authorities and bringing the necessary medical supplies in the occupied territory. The article stresses that taking these measures, including facilitating the supply of vaccines, is a duty under international law rather than an arbitrary act of international solidarity.

Making the Best of Long-Term Services and Supports for Seniors

Katherine Pratt (Loyola Marymount University Los Angeles), Making the Best of Long-Term Services and Supports for Seniors, L.A. Legal Stud. (Research Paper No. 2021-32, 2021):

Living longer may be a blessing or a curse, depending on the quality of life seniors experience during their extended lives. Readers who heed the advice in The 100-Year Life, to plan ahead for multiple stages of a longer life, will have time and resources to re-create themselves in their later years. The 100-Year Life optimistically stresses the opportunities that longer life will provide—assuming that individual financial planning generates sufficient resources to fund a longer life. In fact, however, individual financial planning for retirement generally is inadequate, even before taking into account increased longevity. Fortunately, the federal government’s two largest social insurance programs—Social Security and Medicare—keep millions of seniors out of poverty. The Social Security old-age benefit partially replaces wages that are lost due to aging. Social Security uses a statutory retirement age as a proxy for being unable to work. The federal Medicare program provides hospitalization insurance (“Part A”) medical insurance (“Part B”), and prescription drug insurance (“Part D”) at subsidized rates to beneficiaries based on age, starting at age 65. 

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Role of Judiciary and Social Welfare to Combat Coronavirus Pandemic in Nepal: A Study with Special Reference to India’s Epidemic Law

Dr. Alok Kumar Yadav (Hemvati Nandan Bahuguna Garhwal University) Jivesh Jha, ILI Law Review (2020):

The competent legislature of Nepal has adopted and enacted an epidemic law regime to curtail the transmission of outbreaks. However, these laws have glaring gaps. They are not comprehensive in nature. Nepal’s then king Mahendra brought Infectious Disease Act, 1964 into force to deal with the outbreaks. This one-page Act is much similar to that of India’s Epidemic Act, 1897 which discusses about the rights of the state but fails to prescribe the duties of the government towards its vulnerable citizens during the period of contagion. The 1964 Act fails to prescribe welfare functions to be carried out by the instrumentalities of the state for the welfare of the people. It means this law does not recognize the rights of the people during an outbreak. The crown’s law does not necessarily cast an obligation on the state instruments of Nepal to ensure the availability of food or compensation or financial assistance to the daily wagers, migrant labourers, informal sectors or poor and needy ones who have suffered due to unprecedented Coronavirus pandemic. Unfortunately, the epidemic law of India is also enacted in similar terms. The prevailing epidemic law regimes of India and Nepal neither direct the state to advance research on antibodies/antidotes nor do they oblige the states to set up a common forum of lawyers, economists, sociologists, biologists, bacteriologists, virologists, biomedical scientists and among other experts to devise plans and policies for crisis preparedness and vulnerability reduction.

Role of Judiciary and Social Welfare to Combat Coronavirus Pandemic in Nepal: A Study with Special Reference to India’s Epidemic Law

Dr. Alok Kumar Yadav (Hemvati Nandan Bahuguna Garhwal University Uttarakhand), Jivesh Jha, Role of Judiciary and Social Welfare to Combat Coronavirus Pandemic in Nepal: A Study with Special Reference to India’s Epidemic Law, ILI L. Rev. (2020):

The competent legislature of Nepal has adopted and enacted an epidemic law regime to curtail the transmission of outbreaks. However, these laws have glaring gaps. They are not comprehensive in nature. Nepal’s then king Mahendra brought Infectious Disease Act, 1964 into force to deal with the outbreaks. This one-page Act is much similar to that of India’s Epidemic Act, 1897 which discusses about the rights of the state but fails to prescribe the duties of the government towards its vulnerable citizens during the period of contagion. The 1964 Act fails to prescribe welfare functions to be carried out by the instrumentalities of the state for the welfare of the people. It means this law does not recognize the rights of the people during an outbreak. The crown’s law does not necessarily cast an obligation on the state instruments of Nepal to ensure the availability of food or compensation or financial assistance to the daily wagers, migrant labourers, informal sectors or poor and needy ones who have suffered due to unprecedented Coronavirus pandemic. Unfortunately, the epidemic law of India is also enacted in similar terms. The prevailing epidemic law regimes of India and Nepal neither direct the state to advance research on antibodies/antidotes nor do they oblige the states to set up a common forum of lawyers, economists, sociologists, biologists, bacteriologists, virologists, biomedical scientists and among other experts to devise plans and policies for crisis preparedness and vulnerability reduction.

Sweet Truth - Is There a Market Failure in Sugar?

Christopher Snowdon (IEA), Rob Lyons (IEA), Sweet Truth - Is There a Market Failure in Sugar?, Inst. Econ. Aff.’s (2015):

A government clamp-down on sugar would be damaging and unnecessary

Government intervention in the market can only be justified if there is a market failure and if government action will make a positive difference. This paper looks at several potential failures in the sugar market. These include (a) consumers having imperfect information upon which to make purchasing decisions, (b) negative externalities, such as the cost of obesity-related diseases to healthcare services, and (c) consumer irrationality, including the possibility of addiction.

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The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19

Ittai Bar-Siman-Tov (Bar-Ilan University), Itay Cohen (Bar-Ilan University), Chani Koth (Bar-Ilan University), The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19, L. Pol’y & Pandemics: J. Glob. Pandemic Network (forthcoming):

This paper explores the role of the Israeli Supreme Court in exercising judicial review of COVID-19 control measures. It argues that the Court exhibited changes in its review methods and an adaptation of its role (and its demands from the other branches of government) throughout this prolong crisis. At the first stage, the Court focused on protecting institutional democratic safeguards, while exercising judicial restraint and greater deference than usual in its substantive review of the content of COVID-19 measures. The second stage, as time has passed, was characterized by greater judicial intervention, and growing propensity to hold COVID-19 measures unconstitutional, based on a combination of stricter substantive judicial review and an increased demand for an evidentiary and scientific basis to justify infringement of rights. The Israeli case therefore demonstrates the question of the changing role of judicial review in general (and of evidence-based judicial review in particular) during prolonged emergencies.

Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic

Justin Okerman, Barbara von Tigerstrom (University of Saskatchewan), Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic, Can. Yearbook of Int’l L. 1 (2021):

The current international framework that purports to regulate the spread of communicable disease in the context of maritime traffic is a fragmented, internally inconsistent, and inadequately enforced patchwork of treaties (including the International Health Regulations (2005)) and customary international law. The COVID-19 pandemic has tested the current framework and revealed it to be inadequate to deal with a major global health emergency. States have imposed or failed to impose varying control measures, the effects of which have been witnessed on board passenger vessels around the world. The cruise industry, in particular, has a significant global economic impact; therefore, appropriate, enforceable international regulation is necessary to ensure the adequate control of future communicable disease outbreaks.

International Human Rights, Pandemic Science, and the Promotion of a Liberal International Order Under COVID-19

Jonathan Liljeblad (ANU), International Human Rights, Pandemic Science, and the Promotion of a Liberal International Order Under COVID-19, Australian Yearbook of Int’l L. (forthcoming):

The global COVID-19 pandemic has hosted a rising trend of states engaging in political interference in science underlying public health measures against the virus. Such illiberal actions are counterproductive to hopes of addressing the virus because they impede the operations of scientific inquiry and threaten the integrity of scientific findings. Such actions are also problematic because they raise potential human rights issues of scientists. The linkage of human rights and pandemic science, however, opens possibilities for actions in international law. International human rights instruments, because they encompass the human rights of scientists, provide a means of defending pandemic science against political interference by states. As a result, they proffer a means of public health diplomacy that allows proponents of liberal democracy to support both global pandemic science efforts and the promotion of liberal values in other states.

Human Rights and Structural Inequality in the Shadow of COVID-19 – A New Chapter in the Culture Wars?

Matthew Zagor (ANU), Human Rights and Structural Inequality in the Shadow of COVID-19 – A New Chapter in the Culture Wars?, Australian Yearbook of Int’l L. (forthcoming):

This paper takes structural inequalities of societies as its starting point and premise to assess the state of health of the international human rights legal discipline as it confronts the global pandemic. By way of a couple of case studies, it asks whether international human rights law and its institutions are in fact equipped with the ‘tools’ for the task, and explores how the discipline has reacted to a grassroots political movement, rights-related but not rights-framed, pushing for recognition of racism as a public health crisis. It then considers the conservative backlash to these developments, and asks whether we are entering a new stage of the culture wars around the language, method and assumptions of the discipline.

In Favour of Universal Design: The Argument for Continued Hybrid Online/In-Person Courses in the Wake of the COVID-19 Pandemic with a Focus on Students with Disabilities

Katherine Benson (University of British Columbia), In Favour of Universal Design: The Argument for Continued Hybrid Online/In-Person Courses in the Wake of the COVID-19 Pandemic with a Focus on Students with Disabilities, SSRN (2021):

The global outbreak of the novel 2019-nCoV coronavirus - colloquially referred to as COVID-19 - has had far-reaching implications for post-secondary institutions. There is a tension between post-secondary institutions' desire to provide in-person education and the legal implications of facilitating a situation which carries inherent risks of spreading a novel disease. The first section of this paper makes the argument that hybrid learning - where both online and in-person instruction is made available - is an example of “universal design.” Universal design includes the greatest number of people in post-secondary education and should be embraced by post-secondary institutions as a way to attain their goals of reducing the barriers students have in accessing high-quality education. The second section of this paper makes the argument that delivering classes, which could successfully be offered in an online format, in an in-person-only format while COVID-19 remains active in the community violates both the BC Humans Rights Code and universities’ contractual obligation to provide reasonable accommodation to disabled students. This paper explores what reasonable accommodation means in the face of COVID-19. This paper only explores the legal frameworks present within British Columbia and uses the University of British Columbia as a case study.

Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland

Darius Whelan (University College Cork), Application of the Paternalism Principle to Constitutional Rights: Mental Health Case-Law in Ireland, Eur. J. Health L. (2021):

In adjudicating on matters relating to fundamental constitutional or human rights, courts make important statements about the principles which apply. The principles articulated will have a profound impact on the outcomes of such cases, and on the development of case-law in the relevant field. In the fields of medical law and mental health law, various courts have moved away from deference to medical decision-making and paternalism to a person-centred rights-based approach. However, courts in Ireland have continued to interpret mental health law in a paternalistic fashion, praising paternalism as if it is particularly suitable for mental health law. This raises profound questions about judicial attitudes to people with mental health conditions and judicial reluctance to confer full personhood on people with disabilities. This article outlines case-law in Ireland regarding paternalism in mental health law and discusses the consequences for constitutional rights in Ireland.

Improving Accessibility to Copyright Works for Persons with Print Disabilities in Australia and Singapore

Corinne Tan (Nanyang Technological University), Perry Peh, Improving Accessibility to Copyright Works for Persons with Print Disabilities in Australia and Singapore, 52 Int’l Rev. Intell. Prop. & Competition L. 1020 (2021):

Substantial time has passed since countries including Australia and Singapore have ratified the Marrakesh Treaty. In this article, we examine the copyright legislation in both countries and identify gaps as well as areas for reform in each country, so as to improve the access of persons with print disabilities to copyright works. What intermediary organisations assisting such persons in both countries have been doing is considered, in order to assess the realities individuals with print disabilities face in trying to access copyright material. In addition to implementing legislation to accommodate persons with print disabilities, we argue that a variety of approaches including adopting available technologies and forging an inclusive culture will be needed so as to constitute an effective longer term strategy to improve accessibility for such persons.

The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform

Jennifer A. Brobst (Southern Illinois University), The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform, 15 U. St. Thomas J. L. & Pub. Pol’y 200 (2021):

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system. The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration. Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted. Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health. In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.