Laws, Volume 5, Issue 4 (December 2016) – 6 articles

Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health. Full article

The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author’s 2015 qualitative study of 265 disabled workers, this paper considers how successful the Equality Act 2010 Reasonable Adjustments Duty has been in tackling this social injustice. It finds that in the context of the “flexible” labour force (consisting of insecure jobs), and the “reformed” welfare state, the Reasonable Adjustments Duty is ill-equipped to achieve its original purpose of reducing the substantial disadvantage that disabled workers face. As regards the “flexible” labour force, there appeared, for example, to be a strong reluctance to make reasonable adjustments for workers on zero hours contracts; while, as regards the impact of welfare reform, fear of being dismissed and facing benefit sanctions discouraged zero hours workers from pushing for adjustments which had been refused. The paper goes on to suggest a possible wording for a strengthened Reasonable Adjustments Duty. It concludes, however, that, without changes to unfair dismissal, and other labour laws, to address the wider iniquities of the flexible labour market, a strengthened duty will not be able to prevent a long term increase in social injustice for disabled workers. Full article

A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the history and philosophy of science rather than by ethics, the content of that claim is examined to see if such a self-description is justified. The techniques are analyzed by which apparently liberal arguments get to be presented as “reasonable” in a juridical sense that draws on theories of law and rhetoric. Full article

Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst; thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. This presents the reciprocal situation from efforts to protect the cultural properties of indigenous communities as traditional knowledge. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content. Full article

This paper initially examines the historical precedents established by some of the first women who entered the “gentleman’s profession” of law in different jurisdictions, as well as the biographical patterns that shaped some women’s ambitions to enter the legal professions. The paper then uses feminist methods and theories to interpret “puzzles that remain unsolved” about early women lawyers, focusing especially on two issues. One puzzle is the repeated claims on the part of many of these early women lawyers that they were “lawyers”, and not “women lawyers”, even as they experienced exclusionary practices and discrimination on the part of male lawyers and judges—a puzzle that suggests how professional culture required women lawyers to conform to existing patterns in order to succeed. A second puzzle relates to the public voices of early women lawyers, which tended to suppress disappointments, difficulties and discriminatory practices. In this context, feminist theories suggest a need to be attentive to the “silences” in women’s stories, including the stories of the lives of early women lawyers. Moreover, these insights may have continuing relevance for contemporary women lawyers because it is at least arguable that, while there have been changes in women’s experiences, there has been very little transformation in their work status in relation to men. Full article

In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular, at the level of international human rights law and beyond, as well as the potential that exists for social change at the domestic level. The CRPD Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States related to alleged violations under the optional protocols and will determine compliance with treaty obligations under the State reporting procedure. In that regard, a framework of “reasonableness review” is proposed, which could provide the opportunity to merge individual rights’ violations with broader issues of socio-economic inequalities and could also lead to coherent implementation of the normative content of socio-economic rights at the domestic level. Full article