Barcelona 2002: law, ethics, and human rights. Global battle cry: health is a right, not a commodity

Health is a fundamental right, not a commodity to be sold at a profit, argues Irene Fernandez in the second Jonathan Mann Memorial Lecture delivered on 8 July 2002 to the XIV International AIDS Conference in Barcelona. Ms Fernandez had to obtain a special permit from the Malaysian government to attend the Conference because she is on trial for having publicly released information about abuse, torture, illness, corruption, and death in Malaysian detention camps for migrants. This article, based on Ms Fernandez' presentation, describes how the policies of the rich world have failed the poor world. According to Ms Fernandez, the policies of globalization and privatization of health care have hindered the ability of developing countries to respond to the HIV/AIDS epidemic. The article decries the hypocrisy of the industrialized nations in increasing subsidies to farmers while demanding that the developing world open its doors to Western goods. It points out that the rich nations have failed to live up their foreign aid commitments. The article concludes that these commitments--and the other promises made in the last few years, such as those in the United Nations' Declaration of Commitment on HIV/AIDS--can only become a reality if they are translated into action.     

Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-Communist Constitution-Making

This article focuses on constitutional developments and legal policies in Central Europe since 1989 and elaborates on their temporal analysis with special emphasis on the distinction between demos and ethnos in the political and legal discourse. Using various social theories of time, identity, and codification of social traditions, I argue that the difference between civility and ethnicity does not involve simply a conflict between liberal democratic aspirations and ethno-nationalist myths of authoritarian politics, but rather represents two distinct traditions manipulated by political agents and codified in the process of recent constitution-making. The process of selecting different traditions and political manipulations of the past is reflected at the level of both constitutional symbolism and specific governmental policies in post-Communist Hungary, Slovakia, Poland, and the Czech Republic. The final part of the text analyzes relations between the abstract symbolic language of constitutional documents and concrete, "ethnos-" based legal policies implemented in these countries of Central Europe.     

Providing health insurance in rural china: from research to policy

The focus of this case study is utilizing research to influence policy in a large developing country. Our experiences involve the lack of health insurance for China's rural populations and how our research helped shape China's recent policy attention and efforts on this issue. More than 80 percent of China's 700 million rural residents have no health insurance. This has been the case for the past thirty years, since the collapse of the once-successful Rural Cooperative Medical System after the economic reforms of the early 1980s. In 2002, the Chinese government announced a new rural health financing policy to provide health insurance for its rural populations, financed by a matching fund with contributions from central and local governments, as well as from individual households. This article documents the authors' experiences in addressing several critical questions for converting research results into policy actions, including the following: How are researchers to address policy relevant questions? How are they to acquire the attention of top policy makers to a specific problem? When is the issue at hand serious but not yet critical? And lastly, how are researchers to develop policy recommendations that stand a good chance of being accepted and enacted? Major lessons learned include the need to better understand the mandates and institutional constraints of the policy makers, the appropriateness of timing of both research result and policy efforts, how to use a country's cultural context to garner support of the government, how to enhance the policy's impact by combining formal and informal channels of communication for research dissemination, and the importance of following the policy process through the implementation phase to ensure the original objectives are achieved.     

Preparing the design of robust climate policy architectures

The design of climate policy architectures depends on how its multiple designers identify the climate problem, on the principles they adhere to, and on the criteria they apply for assessing the performance of the constructed agreements. This article presents five core features of the climate policy problem, five principles demanding respect when designing policy, and a particular specification of the four general criteria: efficacy, efficiency, equity, and institutional feasibility. The central policy problem of climate change is the phasing out of non-sustainable energy use by orchestrating trillions of decisions by billions of people. Principles like universality, realism, and transparency are important, but when balancing a global agreement, taking into account diversity and sovereignty are outstanding. For addressing the climate change challenges, the equity criterion should be taken more seriously by the negotiating countries than at present. In a diverse world, equity conflicts are likely to be further exacerbated by attempts to impose uniform approaches like global carbon trading or a harmonized global carbon tax rate. The uniform approaches, lauded by economists and policy makers as superior, are also criticized here as not being so effective and efficient as pretended.     

Governing by expertise: the contested politics of (accounting for) land-based mitigation in a new climate agreement

This article analyzes the contested politics of including (and accounting for) land-based mitigation in a post-2020 climate agreement. Emissions from land have been only partially included to date within the United Nations Framework Convention on Climate Change and its Kyoto Protocol. The Paris Agreement, adopted in December 2015 and “applicable to all” for the post-2020 period, raises the possibility of unprecedented reliance on land-based mitigation. This has significant consequences for furthering both ambition and equity in global climate mitigation efforts. Yet, what are these consequences, and how have they manifested themselves in the existing (pre-2020) multilateral climate regime? What role do accounting rules for land-based mitigation play herein? In addressing these questions, we identify key dimensions of what we term the “governance by expertise” approach taken to land-based mitigation to date, which has served to reduce the environmental integrity of existing (developed country) mitigation efforts. Specifically, we analyze land-use accounting rules as a site of politics and highlight the “technicalization of politics” underway in this realm, which obscures the political implications of how land has been included to date. We conclude by considering whether the Paris Agreement institutionalizes similar dynamics, and the environmental integrity and equity implications of doing so.     

Equity,health, and health care

Equity goals, such as equal treatment for equal need or equality of access, commonly take pride of place among the aims of health policy. But do these conceptions, or others derived from more fundamental philosophical systems such as those of the utilitarians or John Rawls, successfully capture the way in which the term equity is generally used? If not, is it possible to find some interpretation that can command a greater consensus? This paper answers no to the first question and yes to the second. It is argued that the standard conceptions of equity ignore the processes by which health states are determined and hence the extent to which they arise from factors beyond individual control. An alternative conception is proposed that directly incorporates these considerations.     

Hospitals, finance, and health system reform in Britain and the United States, c. 1910-1950: historical revisionism and cross-national comparison

Comparative histories of health system development have been variously influenced by the theoretical approaches of historical institutionalism, political pluralism, and labor mobilization. Britain and the United States have figured significantly in this literature because of their very different trajectories. This article explores the implications of recent research on hospital history in the two countries for existing historiographies, particularly the coming of the National Health Service in Britain. It argues that the two hospital systems initially developed in broadly similar ways, despite the very different outcomes in the 1940s. Thus, applying the conceptual tools used to explain the U.S. trajectory can deepen appreciation of events in Britain. Attention focuses particularly on working-class hospital contributory schemes and their implications for finance, governance, and participation; these are then compared with Blue Cross and U.S. hospital prepayment. While acknowledging the importance of path dependence in shaping attitudes of British bureaucrats toward these schemes, analysis emphasizes their failure in pressure group politics, in contrast to the United States. In both countries labor was also crucial, in the United States sustaining employment-based prepayment and in Britain broadly supporting system reform.     

THE LAWS,POLICIES, AND POLITICS OF REGULATING LEAD POLLUTION IN CHINA

This article examines the politics, laws and policies related to regulating lead pollution from lead-acid battery related manufacturing facilities in China. Particularly, this paper examines how China＇s Ministry of Environmental Protection （MEP） was able to force the temporary closure of nearly 90 percent of lead-battery manufacturing facilities within a period of months in 2011, after years of enforcement failures. The authors analyze the extent to which the Government＇s response to address lead pollution was based on laws and policies that can be systematically and consistently deployed by MEP as needed, or whether such measures are reliant on political will from outside MEP. Additionally, the authors are concerned with the extent to which China ＇s governance response to lead pollution primarily addresses environmental and public health issues; or rather it primarily addresses political and economic development issues, and whether this difference is significant. The article makes suggestions for how China can improve its environmental enforcement, and in so doing, contributes to a growing field of scholarship that examines environmental governance issues in the context of developing countries.     

A contingency theory of policy innovation: how different theories explain the ratification of the UNFCCC and Kyoto Protocol

This article tests theories, elaborated by rationalists, constructivists, and network theorists, that explain the ratification of international environmental treaties. Rationalists argue that countries’ material self-interest and political and economic conditions affect the likelihood of countries ratifying treaties. Constructivists argue that countries are influenced by exposure to world society. Structural embeddedness theory argues that countries are influenced by neighboring countries, religion, language, and economic peers, and those whom they have network ties to via diplomatic relations and IGO memberships. The article is a study of how these factors affected the ratification of two environmental treaties: United Nations Framework Convention on Climate Change and the Kyoto Protocol. The results show that political and economic factors, peer behavior, and network ties were more important in explaining the ratification of the Kyoto Protocol than the UNFCCC. Similar to von Stein (J Conflict Resolut 52:243–268, 2008), it found that exposure to world society was important in the UNFCCC. The authors suggested that the differences were due to the demands which the Kyoto Protocol placed on countries in contrast to the “softness” of the UNFCCC. They also discussed how social influence—based on a variety of inter-governmental relations and affiliations—may signal a change in the structure of the global environmental regime and how it conducts its business.     

The Constitutional Imagination

The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.     

Triggering Parent Company Liability Under United States Sanctions Regimes: The Troubling Implications of Prohibiting Approval and Facilitation

[General Electric] conducts business in more than 100 countries around the world… . An important challenge for all of us is to understand how [laws of different countries] apply to our operations. GE, the parent company, is a corporation organized in the United States. The laws of the United States frequently extend to the operations of GE and its affiliates throughout the world as well as to the business activities of GE employees wherever they live and work. Other countries may also apply their own laws outside of their borders to their own citizens and to corporations that are organized under their laws, such as GE subsidiaries or other controlled affiliates… . In some instances, there may be a conflict between the applicable laws of two or more countries. When you encounter such a conflict, it is especially important to consult company legal counsel to understand how to resolve that conflict properly. ¹     

When you reach a fork in the road, take it: science and product development as linked paths

There is a simple underlying message in this discussion, which has three parts. First, science has the capacity to generate new knowledge and harness that knowledge in the cause of developing products and technology that can reduce disease burdens among developing nation populations. Second, intellectual property is a tool to use in order to insure that new knowledge is not expropriated and exploited in a manner that threatens the ability to provide products and technology to poor people at an affordable price. Third, and finally, academic scientists need to understand that they can stride both pathways of the R&D road, remaining involved in generating basic knowledge while participating in the application of that knowledge towards product development and, through the use of best practice IP management, making it available in resource-poor environments. In order for this to happen, academia needs to maintain bridges to the private sector, while assiduously avoiding financial conflicts of interest, a topic not discussed in this paper. Academic scientists, whether already established or still completing their education, need access to training modules that allows them to define the challenges of the high disease burdens in the third world in human, and not just in consumption or dollar, terms. They also need education regarding the problems they work on, in order to engage them in the technology transfer from academia to the private sector; promote collaboration with scientists in the developing world; provide them with enough insights into the process and how it operates so that they know about the terms of any agreements with the private sector that would prevent poor people from accessing the ultimate product; and finally "reward" them in the academic system by advancement based on applied and field-based international translational and operational applied research. If these education programs develop and expand to increasing numbers of people in the research sector of academia, the number of people taking both paths described here will substantially increase. With that, the amount of research relevant to improving the health status--and indirectly, development--of developing countries will have been substantially increased.     

Making sense of the global health crisis: policy narratives, conflict, and global health governance

Health has become a policy issue of global concern. Worried that the unstructured, polycentric, and pluralist nature of global health governance is undermining the ability to serve emergent global public health interests, some commentators are calling for a more systematic institutional response to the "global health crisis." Yet global health is a complex and uncertain policy issue. This article uses narrative analysis to explore how actors deal with these complexities and how uncertainties affect global health governance. By comparing three narratives in terms of their basic assumptions, the way they define problems as well as the solutions they propose, the analysis shows how the unstructured pluralism of global health policy making creates a wide scope of policy conflict over the global health crisis. This wide scope of conflict enables effective policy-oriented learning about global health issues. The article also shows how exclusionary patterns of cooperation and competition are emerging in health policy making at the global level. These patterns threaten effective learning by risking both polarization of the policy debate and unanticipated consequences of health policy. Avoiding these pitfalls, the analysis suggests, means creating global health governance regimes that promote openness and responsiveness in deliberation about the global health crisis.     

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics , the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.     

Equity and cost-effectiveness of multilateral adaptation finance: are they friends or foes?

This paper analyzes potential criteria to allocate international funding for adaptation to climate change, as a response to one of the main governance challenges of international adaptation funding—the prioritization of project proposals given scarce funding. Based on the review of the equity and cost-effectiveness literature and relevant policy documents, we identify three potential indicators for equity (vulnerability level, poverty, equal funding per capita), and three indicators for cost-effectiveness (economic savings in absolute and relative terms, human lives saved). Applying these simple indicators to information provided in all 39 project documents considered by the Adaptation Fund Board (AFB) in 2011, we find that projects approved or endorsed by the AFB rank high according to one cost-effectiveness indicator (absolute economic savings), while they rather rank low according to all equity and further cost-effectiveness indicators. Furthermore, we analyze whether equity and cost-effectiveness are two contradicting goals, or whether ways can be found to reconcile both goals in multilateral adaptation finance. We conclude from both the theory and the 39 analyzed project documents that a pure economic definition of cost-effectiveness tends to be in contradiction with equity but that trade-offs between equity and cost-effectiveness can be limited if relative economic savings or human live savings are used as indicator for cost-effectiveness.     

Methodology as a Knife Fight: The Process, Politics and Paradox of Evaluating Surveillance

This paper uses the analogy of an unregulated fight to examine the rhetorical politics of evaluation research pertaining to surveillance measures. It outlines how, in addition to being standard fare in social scientific debates, methodological issues have a parallel existence as part of the rhetorical politics of surveillance and crime control. After briefly sketching some of the ways that advocates try and accentuate methodological concerns in attempts to undermine the position of their adversary the paper considers how certain groups are comparatively advantaged and disadvantaged in such exchanges. The concluding section takes a larger view of these dynamics to address some of the risks inherent in engaging in this style of discursive politics.     

Networking for climate change: agency in the context of renewable energy governance in India

Climate change has disastrous impacts in the developing world and confronts countries like India with immense challenges. The dilemma of addressing these challenges encourages the appearance of new modes of agency. However, the extent to which new agents are able to address these challenges depends on several factors. The aim of this article is to examine these factors and how they affect the ways in which climate change-related challenges to development are tackled in the case of the Indian wind energy sector. By firstly examining the attributes and capabilities of the different actors and secondly applying a stakeholder network analysis, the article identifies different characteristics that support the effective and efficient deployment of wind energy in one Indian state and hinder it in another.     

Biology, childhood trauma, and murder: rethinking justice

This article reviews recent findings in the developmental neurophysiology of children subjected to psychological trauma. Studies link extreme neglect and abuse with long-term changes in the nervous and endocrine systems. A growing body of research literature indicates that individuals with severe trauma histories are at higher risk of behaving violently than those without such histories. This article links these two research areas by discussing how severe and protracted child abuse and/or neglect can lead to biological changes, putting these individuals at greater risk for committing homicide and other forms of violence than those without child maltreatment histories. The implications of these biological findings for forensic evaluations are discussed. Based on new understanding of the effects of child maltreatment, the authors invite law and mental health professionals to rethink their notions of justice and offender accountability, and they challenge policymakers to allocate funds for research into effective treatment and for service delivery.