Reconfiguring international pharmaceutical patent protection principles to combat linkage evergreening :|b'de-linking the evergreen' and proposing a solution for developing countries
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
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- Date Issued: 2016
The cultural practice of child marriage as a challenge to the realisation of the human rights of the girl –child: a comparative study of South Africa and Nigeria
- Authors: Olaborede, Adebola Olufunmi
- Date: 2016
- Subjects: Forced marriage Teenage marriage Children's rights Rites and ceremonies
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2578 , vital:27898
- Description: This study primarily sets out to examine the cultural practice of child marriage in Africa with a focus on the comparative study of South Africa and Nigeria. This practice has been prohibited in a number of international human rights instruments such as the African Charter on the Rights and Welfare of the Child, and the Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa. However, overwhelming statistics show that the overall prevalence of child marriage in Africa is still very high and if current trends continue, Africa will become a region with the largest number of the global share of child marriages, by 2050. Different interconnecting factors promote and reinforce child marriage which makes this practice very complex. The challenge of cultural traditional practices and religious beliefs that promote child marriage in Africa are evaluated in this study. The complexities surrounding these cultural practices mainly relate to the conflict that exists between adhering to customs and traditional practices, and promoting the practical implementations and enforcement of human rights standards within communities. In particular, the age at which most girls are given out in marriage conflicts with the minimum legal age of marriage, lack of free and full consent to marriage and the mixed legal system, which mainly comprises of customary law, Islamic law and common or civil law and legislation, that often conflict with one another in most African States. Discussions on these contradictions, as in the case of child marriage, often lead to a seemingly endless debate between the universality of human rights and cultural relativism within African societies. Therefore, this study bears heavily on the debate and relationship between culture and human rights, and the extent to which they can be reconciled in order to achieve a realisation of the fundamental rights of the girl-child. A qualitative research method based on an extensive literature analysis from different disciples is adopted. In addition, is a comparative study of South Africa and Nigeria which seeks to provide insight into the nature and extent of the practice of child marriage, as well as evaluate the adequacy, effectiveness and shortcomings of national legislations that relate to the rights of a girl-child in the context of child marriage, in both jurisdictions.
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- Date Issued: 2016
The work of the international criminal court in Africa and challenges for the future of international criminal justice
- Authors: Mupanga, Godfrey
- Date: 2016
- Subjects: Immunities of foreign states Jurisdiction (International law) Government liability (International law) International relations
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2645 , vital:27977
- Description: Within the first decade of the ICC‟s existence, its case docket was composed of cases originating from Africa only. Relations between the African governments represented by the AU quickly deteriorated. The AU accuses the ICC of bias and unfair targeting of Africa. After the indictment of heads of states that include Omar Al Bashir of Sudan, Uhuru Kenyatta of Kenya and the late Muammar Gaddafi of Libya, the AU passed several resolutions where it reiterated its commitment to the rule of law and to combating impunity. The AU, however, instructed member states to cease all cooperation with the ICC. African states that are ICC members are now faced with conflicting obligations as a result of the AU resolutions. Moreover, the AU resolutions raise the spectre of a legitimacy crisis for the AU and a conflict between articles 27(2) and 98(1) of the Rome Statute. Based mostly on desk research coupled with my experience working on human rights and access to justice programmes in Sudan, South Sudan, Somaliland, Ethiopia, Kenya, Uganda and Zimbabwe, this thesis considers the possibility that the ICC is suffering from a legitimacy crisis as a result of the fall out and the issues of unfair selectivity that are raised by the AU. Employing the Third World Approaches to International Law as an analytical framework, the study attempts to reconcile the apparent contradictions in the new outlook and rhetoric of the AU pursuant to its Constitutive Act and the instruction to member states to withdraw cooperation with the ICC. The thesis also proposes practical ways to resolve the conflicting obligations caused by the AU resolutions and by operation of customary international law immunity of high ranking state officials referred to the ICC by way of a Security Council resolution. The current situation gives the ICC the appearance of a weak institution that is only good for low hanging fruit, which has a negative effect on the legitimacy of the ICC.
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- Date Issued: 2016