Honours 2011 Proposals by Giancarlo de Vera

Honours 2011 Proposals Development Studies, School of Social Sciences and International Studies University of New South Wales

Proposal 1: Contemporary Intellectual Property Systems and Their Impact on Development and Innovation in the South Patent systems were originally developed by individual governments as a means of balancing the interests of right holders and users, and have since regressed into a tangled web of conflicting legalities favouring right-holders and inciting issues of international jurisdiction, intellectual property protection, corporate regulation and domestic and international trade rules. Today’s patent landscape is a complex, opaque and ‘byzantine’ one - difficult to navigate and ineffective in protecting users and their right ‘to share in the benefits of scientific advancement’. On an international level, territorial restrictions prove a significant barrier to scientific innovation and technological dissemination – for example the EU stopped a shipment of generic antibiotics in 2010 that was passing through Frankfurt (en route to Vanuatu) for suspected IP infringement – This can lead to unfortunate downhill flow-on effect on the social and economic welfare of developing countries. With such impediments, health care, medicine, education, energy, climate change, environmental degradation and agricultural development are ultimately effected. As such, the WTO has recognised the need for reform in formulating the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which hopes to see the harmonization of international regulation and legislation to afford greater access to advances in biotechnology in the developing world. Further, there have been movements towards open-patent systems, which promote full disclosure and utilises legal mechanisms, such as copyright licences, to confer permissive rights and responsibilities upon users. Considering these two developments, I then aim to look at access provided by transnational corporations for HIV/AIDS medication in Africa, by analysing both the utility of the two developments but also by looking at the political economy in light of these developments. 1. Can harmonization, as contemplated by the TRIPs agreement ever fully address the manifold interests that drive public and private enterprise? 2. Are the competition rules in TRIPs adequate?

3. Is there the possibility that an internationally accessible opensource system may, in its quest for transparency, foster uncompetitive behaviour? 4. What is the legality and enforceability of patent licenses which, instead of ‘extracting financial return from a user, impose a covenant of behaviour’.

Proposal 2: The New Devil: International corporate criminality factors and effects on development in the South On June 8, 2009, the parties in Wiwa v. Shell agreed to settle a case set to be heard in a US Federal Court in New York for the sum of $15.5 million. The case was brought under the Alien Tort Claims Act alleging, that Royal Dutch/Shell company, its Nigerian subsidiary, and the former head of its Nigerian operation, Brian Anderson, were complicit in the torture, killing, and other international human rights abuses of Ken Saro-Wiwa and other nonviolent Nigerian activists in the mid-1990s. The Royal Dutch/Shell company has been involved in oil production in the Niger Delta region of Nigeria for over fifty years and has a long history of working closely with the Nigerian government. Saro-Wiwa was the leader of the Movement for the Survival of the Ogoni People (MOSOP), a group dedicated to non-violent protest against the exploitation of the Nigerian people and landscape by Shell and the Nigerian government. Support for the movement grew when, in early 1993, Shell requested military support to build a pipeline through the Ogoni region. The Nigerian government, with the alleged complicity and support of the Royal Dutch/Shell company, undertook a brutal campaign aimed at suppressing the protesters. Among the incidents of complaint, Saro-Wiwa was arbitrarily arrested, subjected to a mock trial, tortured and executed. While corporate criminal responsibility is only a new phenomenon, Wiwa v Shell is not an exceptional case. Phillips-Van Heusen have been accused of similar activities in Guatemala as have Coca-Cola in Columbia. However, the claim against Shell was brought under the very exceptional US Alien Tort Claims Act, which allows a US Federal Court domestic jurisdiction for particular international human rights abuses. Not only is this an extremely unique piece of legislation not mimicked in other jurisdiction, but it has been further limited by the US Supreme Court in recent years (see for instance Sosa v Alvarez-Machain). As such, there is increasing legal activities that indicate that corporate criminality is becoming a hindrance to development. This topic aims to look at firstly the socio-political and development factors that lead to corporate criminality, the response and scope of the international legal regime in

addressing corporate criminality and its effects on development practice. 1. In light of economic globalisation, how will the dynamic between states and transnational corporations change, and what effects can be observed from global economic integration? 2. Is there increasing tension between state sovereignty, economic globalisation and democracy? How can good governance in the South be promoted if there is any tension? 3. Noting the value of the private sector in development practice, how can transnational corporations continue to work with the state effectively to promote enterprise?

Proposal 3: Private Governance and Corporate Social Responsibility: A new model for development? Proposal 4: Impunity in Burma: A study into the The 2008 Constitution makes the armed forces an integral part of the government machinery. One of the “Basic Principles” of the 2008 Constitution is to enable the “Defence Services to participate in the National political leadership role of the State”. The English version of the Constitution has been criticized as being misleading; as this provision’s exact wording in Burmese translates that “the Defence Services are always in the leadership positions of the State”. They can be appointed by the Commander-in-Chief to the legislature, and they do not resign from their military posts when in power. They continue to be subject to military discipline and rule, and thus take orders from their military superiors, including the Commander-in-Chief. They are inserted in the constitutional and administrative structures of the state to protect the interests of the armed forces and to assert their dominance. The 2008 Constitution removes all military matters from any civilian legislative, executive and judicial oversight. More specifically, the 2008 Constitution provides that “the Defence Services has the right to independently administer and adjudicate all affairs of the armed forces”. All crimes by the military, including crimes perpetrated by active military officers serving as parliamentarians or the civil service, fall outside of the jurisdiction of all civilian courts. The armed forces are tried by the courts-martial, which fall under the administration of the armed forces. Moreover, military court defendants, including those brought before military tribunals are not entitled to any appellate or constitutional review by the Supreme or Constitutional Courts. Most of the powers of and in relation to the armed forces are vested in the Defence Services Commander-in-Chief. The 2008 Constitution entrenches the power of the non-elected, unaccountable, and perpetually male Commander-

in-Chief, including declaring his decisions over all legal matters involving military justice as “final and conclusive”, over which the Supreme Court has no jurisdiction whatsoever. The 2008 Constitution allows for the Commanderin-Chief to exercise the powers of the legislature, executive and the judiciary and suspend fundamental rights of citizens in cases of emergency, Moreover, the Commander-in-Chief nominates Myanmar’s Ministers and Deputy Ministers of Defence, Home Affairs and Border Affairs from the ranks of the Defence Services. The overall effect of the constitution is that the Commander-in-Chief is not subject to any constraints or scrutiny, either from the Parliament or the judiciary. The 2008 Constitution grants a general amnesty, including for the most serious crimes of concern to the international community. More specifically, Article 445 of the Constitution states that “All policy guidelines, laws, rules, regulations, notifications and declarations of the State Law and Order Restoration Council and the State Peace and Development Council or actions, rights and responsibilities of the State Law and Order Restoration Council shall devolve on the Republic of the Union of Myanmar. No proceeding shall be instituted against the said Councils or any member thereof or any member of the Government, in respect to any act done in the execution of their respective duties”. Thus, with the state of affairs in Burma, the topic aims to firstly analyse the 2008 Constitution and how it supports the current development apparatus controlled by the military junta, and how this affects the human rights of the Burmese people. Secondly it aims to also explore the culture of impunity by applying the Sen-Dreze model for sustainable development (put forward in India: Economic Development and Social Opportunity (1995), as a means of exploring civic opportunities, the role of public action and political organisations in promoting these opportunities, and the effect of gendered crimes in the expansion of social opportunities for both women and men. The topic also aims to look at the pro-democracy movement, and how the international community can engage with the situation in Burma proactively.