This paper examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed states push for higher mandatory protection levels. In previous negotiations, developing countries have based their positions on primary principles of intellectual property law – its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; developed states counter-argue that stronger protection achieves the same ends. The paper examines the resulting circular discussions at the 2001-2003 WTO Doha negotiations on TRIPS and Public Health, and at the WIPO Development Agenda talks since 2004. The paper argues that the negotiation impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longer-term benefits.Recently, developing countries have celebrated the WIPO Development Agenda as a “paradigm shift” in the approach to international IP protection. This paper argues that the Development Agenda will not necessarily change anything, and that developing countries should introduce human rights standards into the discussion if they want to move the debate forward. Human rights standards can be used as benchmarks to assess whether IP rules do indeed promote the public good and achieve an acceptable balance between the rights of patent-holders and the broader public interest. The paper shows how the ICESCR can be used to support a human rights-based argument.
{"title":"The curious absence of human rights: Can the WIPO Development Agenda transform intellectual property negotiation?","authors":"A. Barratt","doi":"10.4314/LDD.V14I1.1","DOIUrl":"https://doi.org/10.4314/LDD.V14I1.1","url":null,"abstract":"This paper examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed states push for higher mandatory protection levels. In previous negotiations, developing countries have based their positions on primary principles of intellectual property law – its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; developed states counter-argue that stronger protection achieves the same ends. The paper examines the resulting circular discussions at the 2001-2003 WTO Doha negotiations on TRIPS and Public Health, and at the WIPO Development Agenda talks since 2004. The paper argues that the negotiation impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longer-term benefits.Recently, developing countries have celebrated the WIPO Development Agenda as a “paradigm shift” in the approach to international IP protection. This paper argues that the Development Agenda will not necessarily change anything, and that developing countries should introduce human rights standards into the discussion if they want to move the debate forward. Human rights standards can be used as benchmarks to assess whether IP rules do indeed promote the public good and achieve an acceptable balance between the rights of patent-holders and the broader public interest. The paper shows how the ICESCR can be used to support a human rights-based argument.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114568844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It has become internationally recognised that the right of access to water is fundamental to life and health. Furthermore, it is indispensable for leading a life of human dignity.The South African Constitution expressly recognises this right. This paper examines to what extent the South African government has met its obligation to provide access to sufficient water fit for human consumption. It also looks at recent judicial decisions on the right of access to water, where courts have not only found that the minimum quantity of water prescribed by national legislation is insufficient but, controversially, have prescribed what a minimum quantity of water should be.It concludes by suggesting what should be done in South Africa in order to ensure access to sufficient water for everyone.
{"title":"The right of access to sufficient water in South Africa: How far have we come?","authors":"S. Heleba","doi":"10.4314/LDD.V15I1.10","DOIUrl":"https://doi.org/10.4314/LDD.V15I1.10","url":null,"abstract":"It has become internationally recognised that the right of access to water is fundamental to life and health. Furthermore, it is indispensable for leading a life of human dignity.The South African Constitution expressly recognises this right. This paper examines to what extent the South African government has met its obligation to provide access to sufficient water fit for human consumption. It also looks at recent judicial decisions on the right of access to water, where courts have not only found that the minimum quantity of water prescribed by national legislation is insufficient but, controversially, have prescribed what a minimum quantity of water should be.It concludes by suggesting what should be done in South Africa in order to ensure access to sufficient water for everyone.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"185 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121837311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ronnie Bedu deals with the judgment of the Constitutional Court in Centre for Child Law v Minister of Justice and Constitutional Development and Others on the constitutionality of minimum sentences in respect of young offenders under 18 years of age.
Ronnie Bedu处理宪法法院在儿童法中心诉司法和宪法发展部长及其他人案中关于对18岁以下的少年犯判处最低刑罚是否符合宪法的判决。
{"title":"The final curtain call for the 'Minimum Sentences Act'","authors":"Ronnie Bedu","doi":"10.4314/LDD.V13I2.66857","DOIUrl":"https://doi.org/10.4314/LDD.V13I2.66857","url":null,"abstract":"Ronnie Bedu deals with the judgment of the Constitutional Court in Centre for Child Law v Minister of Justice and Constitutional Development and Others on the constitutionality of minimum sentences in respect of young offenders under 18 years of age.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133992721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Is the South African Constitution a 'people's document'? Does it give voice to, encourage and protect the actions of the poor, the homeless, the marginalised and the excluded? If the meaning of the rights in the South African Bill of Rights emerges through a complex interaction between the words on paper and its 'open community of interpreters', to what extent does it empower the 'practices of resistance and struggle' of the oppressed and marginalised, the poor and the homeless to 'name human rights and to put them to work'? Can we interpret the rights in the South African Constitution in such an activist way? This democratic conception of rights goes beyond, but draws upon Jennifer Nedelsky's idea that a 'constitutional dialogue' between the branches of the State should decide the content and meaning of rights in a society. This dialogue should make specific allowance for the participation of the beneficiary in both words and action. In this sense the citizen becomes the subject or author of rights, and we may arrive at a conception of rights that enables democracy to exert real influence over society.
{"title":"The performance of the right to have access to social security","authors":"N. Malan","doi":"10.4314/LDD.V13I2.66856","DOIUrl":"https://doi.org/10.4314/LDD.V13I2.66856","url":null,"abstract":"Is the South African Constitution a 'people's document'? Does it give voice to, encourage and protect the actions of the poor, the homeless, the marginalised and the excluded? If the meaning of the rights in the South African Bill of Rights emerges through a complex interaction between the words on paper and its 'open community of interpreters', to what extent does it empower the 'practices of resistance and struggle' of the oppressed and marginalised, the poor and the homeless to 'name human rights and to put them to work'? Can we interpret the rights in the South African Constitution in such an activist way? This democratic conception of rights goes beyond, but draws upon Jennifer Nedelsky's idea that a 'constitutional dialogue' between the branches of the State should decide the content and meaning of rights in a society. This dialogue should make specific allowance for the participation of the beneficiary in both words and action. In this sense the citizen becomes the subject or author of rights, and we may arrive at a conception of rights that enables democracy to exert real influence over society.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"66 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126014020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
‘The time has come to recognize that denials of individuals’ rights on the ground only that they are women are human rights violations, and to require state practices that expose women to degradation, indignity, and oppression on account of their sex to be independently defined, condemned, compensated, and, preferably, prevented. The purpose of changing ubiquitous state practice may appear ambitious, but it is not too ambitious for the needs of our time.’1 ‘[This Protocol] reaffirms the principle of promoting gender equality as enshrined in the Constitutive Act of the African Union as well as the New Partnership for Africa’s Development, relevant Declarations, Resolutions and Decisions, which underline the commitment of the African States to ensure the full participation of African women as equal partners in Africa’s development.’2 ‘The substantive realisation of equality is a precondition for transformative change in South Africa. Yet, inequality is still the biggest challenge facing development and transformation in post-apartheid South Africa.’3
{"title":"The impact of traditional sex practices on the construction of female sexuality: an African human rights perspective","authors":"L. V. D. Poll","doi":"10.4314/LDD.V13I2.66851","DOIUrl":"https://doi.org/10.4314/LDD.V13I2.66851","url":null,"abstract":"‘The time has come to recognize that denials of individuals’ rights on the ground only that they are women are human rights violations, and to require state practices that expose women to degradation, indignity, and oppression on account of their sex to be independently defined, condemned, compensated, and, preferably, prevented. The purpose of changing ubiquitous state practice may appear ambitious, but it is not too ambitious \u0000for the needs of our time.’1 ‘[This Protocol] reaffirms the principle of promoting gender equality as enshrined in the Constitutive Act of the African Union as well as the New Partnership for Africa’s Development, relevant Declarations, Resolutions and Decisions, which underline the commitment of the African States to ensure the full participation of African women as equal partners in Africa’s development.’2 \u0000‘The substantive realisation of equality is a precondition for transformative change in South Africa. Yet, inequality is still the biggest challenge facing development and transformation in post-apartheid South Africa.’3","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129239920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Aniekwu Nkolika Ijeoma notes that, in July 2003, the African Union adopted a landmark treaty, the Protocol on the Rights of Women in Africa, which significantly advances human rights protections to better reflect and incorporate women’s experiences. It presents a tremendous opportunity for women’s rights advocates in Africa, being the first regional human rights treaty to explicitly articulate women’s right to abortion in specified circumstances.
{"title":"The additional protocol to the African Charter on Human and People's Rights: indications of capacity for African municipal systems","authors":"N. Aniekwu","doi":"10.4314/LDD.V13I2.66852","DOIUrl":"https://doi.org/10.4314/LDD.V13I2.66852","url":null,"abstract":"Aniekwu Nkolika Ijeoma notes that, in July 2003, the African Union adopted a landmark treaty, the Protocol on the Rights of Women in Africa, which significantly advances human rights protections to better reflect and incorporate women’s experiences. It presents a tremendous opportunity for women’s rights advocates in Africa, being the first regional human rights treaty to explicitly articulate women’s right to abortion in specified circumstances.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116829006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Kitty Malherbe and Lorenzo Wakefield show how roles traditionally allotted to women may obstruct their access to the right to social security. There are instances where women’s care-giving role provides them with benefits they otherwise would not have had, such as child support grants. On the other hand, care-giving can exclude women from the application of other benefits, such as certain retirement funds. The authors examine the need for measures aimed at providing assistance to women as care-givers as well as the potential pitfalls of such measures, such as the danger of stereotyping women as care-givers.
{"title":"The effect of women’s care-giving role on their social security rights","authors":"K. Malherbe, Lorenzo Wakefield","doi":"10.4314/LDD.V13I2.66855","DOIUrl":"https://doi.org/10.4314/LDD.V13I2.66855","url":null,"abstract":"Kitty Malherbe and Lorenzo Wakefield show how roles traditionally allotted to women may obstruct their access to the right to social security. There are instances where women’s care-giving role provides them with benefits they otherwise would not have had, such as child support grants. \u0000 \u0000On the other hand, care-giving can exclude women from the application of other benefits, such as certain retirement funds. The authors examine the need for measures aimed at providing assistance to women as care-givers as well as the potential pitfalls of such measures, such as the danger of stereotyping women as care-givers.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127742892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The concept of freedom of information is said to be imprecise and uninstructive. Despite the imprecise nature of the concept, freedom of information is generally understood to convey the notion that there is a right to access information held by government.
{"title":"The quest for freedom of information law - the Zambian experience","authors":"P. Matibini","doi":"10.4314/ldd.v13i1.54808","DOIUrl":"https://doi.org/10.4314/ldd.v13i1.54808","url":null,"abstract":"The concept of freedom of information is said to be imprecise and uninstructive. Despite the imprecise nature of the concept, freedom of information is generally understood to convey the notion that there is a right to access information held by government.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114391157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For years, lawyers, jurists and academics bemoaned a great gaping hole in our law : the Final Constitution had promised to establish a legal regime to mediate and to resolve intergovernmental conflicts. (Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)("Final Constitution" or "FC"). During the first decade of post-apartheid South African life (1996 - 2005), Parliament failed to make good FC s 41(2)'s guarantee that intergovernmental disputes would be resolved by legislation that prevented different spheres of government and opposing organs of state from going to war (or court) over vital policy matters.
{"title":"L'etat, C'est Moi: Why provincial Intra-governmental disputes in South Africa remain ungoverned by the final constitution and the Intergovernmental Relations Framework Act - and how we can best resolve them","authors":"S. Woolman","doi":"10.4314/LDD.V13I1.54805","DOIUrl":"https://doi.org/10.4314/LDD.V13I1.54805","url":null,"abstract":"For years, lawyers, jurists and academics bemoaned a great gaping hole in our law : the Final Constitution had promised to establish a legal regime to mediate and to resolve intergovernmental conflicts. (Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)(\"Final Constitution\" or \"FC\"). During the first decade of post-apartheid South African life (1996 - 2005), Parliament failed to make good FC s 41(2)'s guarantee that intergovernmental disputes would be resolved by legislation that prevented different spheres of government and opposing organs of state from going to war (or court) over vital policy matters.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130194666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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