The Story of the TAC Case: The Potential and Limits of Socio-Economic Rights Litigation in South Africa

Berger, Jonathan; Kapczynski, Amy

doi:10.2139/ssrn.1323522

Cited by 10 publications

(4 citation statements)

References 4 publications

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“…5.2.2, 5.2.3 and 5.2.4 below. 89 See, for example: Land (2013) https://www.academia.edu/10455316/Human_Rights_Frames_ in_IP_Contests?email_work_card¼view-paper; and Berger and Kapczynski (2009) Human Rights Advocacy Stories https://papers.ssrn.com/sol3/papers.cfm?abstract_id¼1323522. 90 See discussion below in respect of the approach of South African courts to employing a human rights lens in IP disputes, despite having a strong Bill of Rights in its Constitution.…”

Section: Legal Frameworkmentioning

confidence: 99%

Compulsory Licenses and Government Use: Challenges and Opportunities

Vawda

2021

Access to Medicines and Vaccines

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The compulsory licensing and government use flexibility is potentially the most powerful tool available under the TRIPS Agreement, as amplified by the Doha Declaration, to advance public health objectives. Yet, many lower and middle income countries have shown an apparent reluctance to both incorporate them into their national legislation and then utilise them—except in a relatively small number of cases. This contribution analyses the circumstances surrounding this phenomenon. It outlines the context, historical roots of compulsory licensing and its inclusion on the TRIPS Agreement, recent examples of its utility including in two sub-Saharan countries affected by HIV/AIDS, and offers some recommendations. Among the propositions advanced are that the use of such flexibilities is not an insurmountable problem (as the case of Zimbabwe illustrates) and that in the longer term, public health objectives are best advanced by, among others, amending the TRIPS Agreement to exempt health technologies from the ambit of intellectual property protection, and new, alternative models for rewarding innovation in this field of technology being introduced.

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Section: Legal Frameworkmentioning

confidence: 99%

Compulsory Licenses and Government Use: Challenges and Opportunities

Vawda

2021

Access to Medicines and Vaccines

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“…157 There are other interesting cases in domestic law such as the celebrated South African constitutional case of Minister of Health v Treatment Action Campaign, which is seen as successful socio-economic rights litigation because it resulted in a direct order to the government to implement a comprehensive programme to prevent mother-to-child-transmission of HIV. 158 The anecdotal nature of these successes, however, is out of kilter with the intensity of resources that have historically been put into the progressive project of trying to link human rights to patent law and intellectual property.…”

Section: The Technocratic Patent System and The Difficulty In Accomodmentioning

confidence: 99%

Improving Access to Patented Medicines: Are Human Rights Getting in the Way?

Thambisetty

2018

SSRN Journal

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This paper examines the value of human rights arguments in reducing the access gap to patented medicines. Great efforts continue to be poured into institutional, doctrinal and activist settings to bring human rights thinking to bear on the grant and exploitation of patents. Far from triggering meaningful intervention, however, the international human right to health functions as a placeholder, pointing to specific sites of injury or harm and diverting attention from larger ambitions of justice over current incentive structures around patented pharmaceuticals. Excessively technical, incomplete theorising and linguistically driven decision-making have purged reflexive spaces in patent law that might have accommodated purposive reasoning aligned with the protection of human rights. Reliance on the human right to health to correct the technocratic forces in patent law is doomed to fail, because doing so ignores the source of the problem. The point is not that we should not limit patent rights; it is that we cannot do so using only human rights thinking. It would be far better to uncouple human rights from patent law, so that we may systematically retool the latter to be a purposive and reflexive system of law that understands and participates in its own consequences.

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“…This has included countries regular reporting of progress towards the Millennium Development Goals, and the UN General Assembly Declaration of Commitment on AIDS. Even in cases where litigation has resulted in policy change such as the TAC case in South Africa, this has required further advocacy and monitoring to ensure implementation, underlining the need for continuous accountability …”

Section: Analysis – Key Human Rights Principles and Their Applicationmentioning

confidence: 99%

Considerations for a Human Rights Impact Assessment of a Population Wide Treatment for HIV Prevention Intervention

Hanefeld¹,

Bond²,

Seeley³

et al. 2013

Developing World Bioethics

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Increasing attention is being paid to the potential of anti-retroviral treatment (ART) for HIV prevention. The possibility of eliminating HIV from a population through a universal test and treat intervention, where all people within a population are tested for HIV and all positive people immediately initiated on ART, as part of a wider prevention intervention, was first proposed in 2009. Several clinical trials testing this idea are now in inception phase. An intervention which relies on universally testing the entire population for HIV will pose challenges to human rights, including obtaining genuine consent to testing and treatment. It also requires a context in which people can live free from fear of stigma, discrimination and violence, and can access services they require. These challenges are distinct from the field of medical ethics which has traditionally governed clinical trials and focuses primarily on patient researcher relationship. This paper sets out the potential impact of a population wide treatment as prevention intervention on human rights. It identifies five human right principles of particular relevance: participation, accountability, the right to health, non-discrimination and equality, and consent and confidentiality. The paper proposes that explicit attention to human rights can strengthen a treatment as prevention intervention, contribute to mediating likely health systems challenges and offer insights on how to reach all sections of the population.

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The Story of the TAC Case: The Potential and Limits of Socio-Economic Rights Litigation in South Africa

Cited by 10 publications

References 4 publications

Compulsory Licenses and Government Use: Challenges and Opportunities

Compulsory Licenses and Government Use: Challenges and Opportunities

Improving Access to Patented Medicines: Are Human Rights Getting in the Way?

Considerations for a Human Rights Impact Assessment of a Population Wide Treatment for HIV Prevention Intervention

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