Flashcards in LECTURE 4: Property and Human Rights Deck (23):
From Aristotle down to the 17th century, property was seen to include both of two kinds of individual rights, what are these?
- An individual right to exclude others from some use or enjoyment of some thing.
- An individual right not to be excluded from the use or enjoyment of things the society has declared to be for common use (e.g. common lands, parks, roads, waters).
- Both were rights of individuals. Both rights were created and maintained by society or the state. Both therefore were individual property.
(Macpherson, 1985, p.77)
What has the right of property been narrowed to more recently (post 17th century)?
Largely been narrowed to the first right - the right to exclude others.
(Macpherson, 1985, p.77)
Why and how has the definition of property changed?
-the broad meaning of property (one's own person, one's capacities, one's rights and liberties) was lost in the measure that modern societies became fully market societies.
- Property came to have only a narrow meaning: property in material things or revenues.
- With the predominance of the market, every individual's effective rights and liberties, their effective ability to develop their own persons and exercise their capabilities, came to depend so much on what material property they had that the very idea of property was easily reduced to material property.
(Macpherson, 1985, p.77)
How does property relate to justice and equality?
“Obviously, some further change now is needed to make our narrow concept of property consistent with a democratic society. Property as an exclusive right of a natural or artificial person to use and dispose of material things (including land and resources) leads necessarily, in any kind of market society (from the freest, most perfectly competitive one, to a highly monopolistic one), to an inequality of wealth and power that denies a lot of people the possibility of a reasonably human life.”
(Macpherson, 1985, p.78)
What is the 90/10 gap? (intellectual property and access to medicines)
10% of worldwide expenditure on health R&D is devoted to problems that primarily affect the poorest 90% of the world's population.
What is the problem with inequality of wealth and power? (Macpherson, 1985, p.79)
“This kind of inequality … also contradicts one of the basic justifications of the very institution of individual property, namely, that human needs cannot be met without that institution. It can easily be demonstrated that, granted an equal right to life, everyone needs such an amount of individual property, in the means of life and in access to the means of labour, as will ensure the continuance of his or her life. And on any acceptable notion of human rights, this requires more than a right to bare physical subsistence. It … does not need to be an exclusive property. It can, equally well, be the other kind of individual property - the right not to be excluded from some use or enjoyment of something.”
(Macpherson, 1985, p.79)
What kinds of inequality are there?
-Political and social inequality (equality in opportunity, resources, gender, labour rights)
-Human rights to property VS other human rights
Tax avoidance case in the Zambia
ActionAid has conducted research into corporate tax avoidance in Zambia. Their findings show how a major sugar producing company in East Africa called Zambia Sugar is avoiding paying millions of pounds in corporate tax. They are owned by Associated British Foods, which owns brands such as Silver Spoon sugar, Twinings tea and Kingsmill Bread
Large company paying less tax (sometimes no tax) than a local woman with a market stall. The country has a malnourishment problem and school's lack resources.
Right to certain living standard
Article 25 of the Universal Declaration “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control ... Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
Taxation challenges for developing countries
Difficult to impose tax to the general public, majority of which are poor
Difficult to impose tax to those who can pay (BCG reports that 33.3% of all private financial wealth owned by people in Africa and the Middle East and 25.6% of such wealth owned by Latin Americans -$2.6 trillion, are kept abroad)
What are the taxation challenges for MNCs?
Subsidiaries in Tax havens, enter money losing arrangement with subsidiaries in the developing countries including trade misinvoicing, abusive transfer price, inflated consulting and trademark fees ----Reduce taxed profits of subsidiaries in developing countries, and increase untaxed profits of tax-haven subsidiaries.
Illicit Financial Flows: More money flows illegally out of developing and emerging countries each year—facilitated by secrecy in the global financial system—than they receive in foreign direct investment and foreign aid combined. Beyond bleeding the world’s poorest economies, this propels crime, corruption, and tax evasion globally.
The right to health (UDHR 1948, para 25)
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
The right to participate in scientific advantage (UDHR, 1948 para 27)
“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
A right not to be excluded
The right to property (UDHR, 1948, para 17)
“Everyone has the right to own property alone as well as in association with others…
… No one shall be arbitrarily deprived of his property.”
A qualification of the right to health?
What is the relation between property rights and hunger?
“That property and hunger are closely related cannot possibly come as a great surprise. Hunger is primarily associated with not owning enough food and thus property rights over food are immediately and directly involved.
The tendency to see hunger in purely technocratic terms of food output and availability may help to hide the crucial role of entitlements in the genesis of hunger, but a fuller economic analysis cannot overlook that crucial role.
Since property rights over food are derived from property rights over other goods and resources (through production and trade), the entire system of rights of acquisition and transfer is implicated in the emergence and survival of hunger and starvation.”
(Sen, 1988, pp. 64-65)
The right to intellectual property protection? UDHR para 27
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
The intellectual property "bargain"
Information made public contributing to scientific advance for all in exchange for patent protection for typically 20 years.
Protection of property (EU Convention on HR - 1952)
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
WHO (2008): Strategy on Public Health, Innovation and Intellectual Property
Intellectual property rights are an important incentive for the development of new health care products. This incentive alone does not meet the need for the development of new products to fight diseases where the potential paying market is small or uncertain.
WTO perspective on intellectual property rights
WTO: The Trade related Aspects of Intellectual Property rights agreements:
- An attempt to narrow the gaps in the way IP rights are protected around the world, and to bring them under common international rules.
- Minimum levels of protection that each government has to give to the intellectual property of fellow WTO members.
Doha Declaration 2001
“We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.”
What are the issues with intellectual property laws?
New threats are emerging that could keep the prices of antiretroviral (ARV) higher for longer. Many countries face an escalating number of patents on ARVs due to TRIPS and TRIPS-plus measures, and out-dated laws or patent systems that facilitate so-called ‘evergreening’, or secondary patenting.
Developing countries also face substantial bilateral pressure from industry and the governments of wealthy countries, including the United States, to abandon pro-public health intellectual property laws and efforts to promote generic competition.
In South Africa, a scandal dubbed ‘Pharmagate’ exposed the pharmaceutical industry’s covert efforts to derail national patent law reform.