Thesis (MPhil) -- AUT University, 2008. / Includes bibliographical references. Also held in print (xi, 133 leaves ; 30 cm.) in City Campus Theses Collection (T 346.048 NAS)

Eastern and southern Africa, a region that is home to a twentieth of the world’s population, accounts for half the number of people living with HIV globally, including an increasingly drug resistant Tuberculosis epidemic. The high mortality and untold human suffering associated with HIV in the region during the late 1990s and early 2000s has mostly been mitigated by a rapid scale up of national HIV treatment programmes over the past decade, largely made possible by generic competition from Indian pharmaceutical manufacturers. The sustainability of treatment programmes in the region depends on various factors. National HIV treatment programmes are largely financed by multilateral donor mechanisms which are facing a decline in funding for the first time in the history of the AIDS response. Indian pharmaceutical manufacturers are increasingly encountering patent barriers stemming from the country’s implementation of its intellectual property obligations under the World Trade Organisation’s TRIPS Agreement. As eastern and southern African countries increasingly focus on local pharmaceutical production and south-south co-operation as vehicles for treatment sustainability, this thesis examines the extent to which public health related flexibilities present in the TRIPS Agreement can be used to as enablers of affordable treatment, both in domestic intellectual property legislation, and relevant regional platforms. The thesis undertakes case studies of the policy and legislative environment in two countries with very different profiles: The United Republic of Tanzania as a least developed country with a nascent local pharmaceutical manufacturing industry and South Africa, as the country with the largest pharmaceutical industry on the continent present the full range of country profiles in the region. Conclusions are drawn regarding the optimization of legislative and policy frameworks to facilitate both the importation and local production of health technologies. Finally, the thesis explores challenges and opportunities facing various south-south co-operation initiatives in the region.

From its emergence to its expansion, intellectual property (IP) has not been isolated from trade. However, in the late 1970s, business interests in the United States (US) exerted powerful pressure, leading to IP norms becoming increasingly trade-centric. Hypothesis of this thesis is that such trade-centric IP norms, encouraged and formed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and subsequent TRIPS-plus rules pursued by the two most active actors, the US and the European Union (EU), fail to achieve the intended purposes of IP protection. This normalization of tradecentric regulation also creates conflict with a range of economic, social and cultural values that have significant human rights implications. The goal of this thesis is to: (a) critically examine this predominance of trade in contemporary IP norms; and (b) provide a counter framework for IP policy reform. It seeks to do this by juxtaposing the theoretical and empirical aspects of IP norms against human rights. This study will pursue to prove the hypothesis by conducting case studies on two free trade agreements (FTAs) enacted by South Korea with the US and the EU. The thesis concludes that, on the whole, the context of human rights provides a just counter framework that can unify the diverse range of issues. This is more so given that human rights are strengthened by international consensual norms institutionalised by intergovernmental organisations and supported by transnational advocacy networks. Nevertheless, this thesis advocates that an overemphasis on state and individuals in the human rights discourse needs to be challenged by taking into account the dominance of global economic regulations, the prevailing role of non-state actors, and the culturally relative nature of IP.

Thesis (Ph.D.)--University of Wollongong, 2004. / Typescript. Includes bibliographical references: leaf 375-423.

This dissertation analyses the ability of Chinese lawyers to use administrative litigation to protect individuals and groups from an authoritarian state that frequently infringes on their rights. These plaintiffs fill administrative courts in China, opposing the overzealous tactics of police, challenging the expropriation of their land, and disputing the seizure and demolition of their homes. Empirically, it relies on several unique data sources in a mixed-methodological approach. Qualitative and small-n quantitative data from 126 interviews with a random sample of Chinese lawyers and 52 additional interviews are supplemented by documentary sources. These findings are then tested against official data and a large survey of Chinese lawyers. This research demonstrates that administrative litigation is part of a polycentric authoritarian system that helps the Chinese state to monitor its agents, allows limited political participation, and facilitates economic development (Chapter One). By giving ordinary Chinese a chance to hold their local governments accountable in court, administrative litigation represents a significant step towards rule of law, but its limited scope means that it has not been accompanied by dramatic liberalisation (Chapter Three). In part, this is because the most prolific and successful administrative litigators are politically embedded lawyers, insiders who challenge the state in court but eschew the most radical cases and tactics (Chapter Four). The tactics that allow politically embedded lawyers to successfully litigate administrative cases rely on and contribute to China’s polycentric authoritarianism by drawing in other state, quasi-state, and non-state actors (Chapter Five). Multinationals in China are largely failing to contribute to the development of China’s legal system because they readily accept preferential treatment from the Chinese state as an alternative to litigation (Chapter Six). While administrative litigation bolsters China’s polycentric authoritarianism in the short term, it offers tremendous potential for rationalisation, liberalisation, and even democratisation in the long term.