Business Law - South African Government and the Pharmaceuticals Companies from the U.S - Essay Example

Order 198207 BUSINESS LAW Reference to the facts given in the South African case v. the pharmaceutical companies, the legislation implemented by South Africa both before and after Doha declaration is justified. Referring to general principles of recognized by civilized states as a source of international law, it protects South African government in its bid to establish its own health care policy. The decision of South Africa was driven by the fact that most of the affected HIV/AIDS victims come from developing countries where access to cheap medical facilities and medicines were inadequate faced by a total population of 4.7 million people affected y the pandemics, the South African government had no alternative except to manufacture cheap drugs accessible to all people. Therefore South African had the right to implement the legislation both before and after Doha declaration. Before Doha declaration, the South African Government was acting under the general principle of law recognized by civilized states which a recognized source of international law. This source helps international law to adapt itself in accordance with the changing times and circumstances. As pointed out by G. Von Glahn, renowned author of international law, two views are prevalent about this source of law. According to one view the phase includes such general principles which can be applied in domestic jurisprudence and can be applied to international legal issues. For instance the question of hand in which, the South African government and the pharmaceuticals companies from U.S are seeking international redress to the issue of the SA government manufacturing cheap drugs. The point of contention at hand is the issue of patents rights where pharmaceutical companies want patent rights be protected while the government is concerned about providing cheap and affordable drugs to the people infected by HIV/AIDS; the pharmaceutical companies are sensing a decline of their products in the market due to the preference of cheap drugs. Owing to the gaps in international law, it was felt that the competence of the court could not be confirmed to making judgments according to positive international law i.e. according to customer and conventions but it won rather designed to give free reign to the law making activity of the court and the court had to content itself with applying principles of law which could be established as common to the municipal law of all civilized nations and were therefore positive law, though not positive international law (Tostem Gohl, the legal characters and sources of international law Stockholm (1957). In the Lotus case, (P.C.I) ser, A No. 10) the permanent court of international justice observed on the court considers that the words principles of international law as ordinary used can only mean international law as is applied between nations belonging to the community of states. A principle of law recognized by any domestic law does not become on international law by the virtue that it has been accepted by other nations, it becomes a principle of international of law when it has been accepted by the world court. Judge Lauterpact has therefore rightly remarked that the main function of the general principles of law has been that of safety-value to be kept in reserve rather than a source of frequent application of this source only when in a case before it, there is neither international convention nor a custom in respect of the dispute involved. Thus articles 38, paragraph 1 (c) of the statute of the international court of Justice places on record are of the main sources of the rules of public international law. The general principles of laws are those rules or standards which, are repeated in much the same form in the development systems of law, either because they have a common origin or because they express a necessary response to certain basic needs of human association reference to the South African case, the Doha declaration on the TRIPS AND PUBLIC HEALTH. The Doha declaration recognized that high price of medicines caused by potent protection are part of the serious problems that are affecting developing countries and least developed countries. It was deliberated at length and it was found that patent protection is affecting drugs prices. This protection of patents has made the pharmaceuticals companies to be sole manufactures of expensive medicines which are unaffordable to people leaving in developing and least developed countries. Developing countries where South Africa is one of the seeking declarations recognizing their right to implement certain pre competitive measures like compulsory licenses and parallel imports as needed to enhance access to health care. These countries were unhappy by the opposition and pressure extended on some countries by the pharmaceutical industry and governments (Drahos 2002) Given the circumstances of the case the government of South Africa's health policy implementation where they manufactured cheap drugs for HIV/AIDS is in line with the Doha declaration on trips a agreement and public health. The question which had to be decided in Doha was one of patent right in one hand and those of least developed countries and developing countries on the other hand. The point where is clear, while citizens of rich countries and able to get access and afford the drugs manufactured by varies pharmaceuticals companies, those from least developed and developing countries could not afford the much expensive drugs manufactured by pharmaceutical companies. It is here that these developing and least developed countries were seeking the TRIPS agreement requiring developing countries to offer patent protection for pharmaceutical products be aliments so that these countries are allow to develop hearth policies that are affordable to their poor citizen Given the position of Doha declaration South Africa where it was decided that importing member which areas that it must be feast developed country, or any member county of the WTO that has notified the council for TRIPS that it intends to use in this regard South Africa has a right to manufacture and import drugs given the foot that it is a developing country. All that is wire drew as far the requirement of international law is South Africa providing a notification to the council for TRIPS which contain the name and expected quantity of the product needed, confirmations that the country has granted on will grant copulas license in accordance with Article 31 of the TRIPS agreement of the pharmaceutical products is on in its patent territory. Basically South Africa has a right to manufacture cheap drugs and import given the fact that Doha declaration has provided for it. The decoration had strive to remove the problem of patent tights and that of developing and least development countries manufacturing and importing the drugs , this declaration is a mite stone in ensuring that these countries like India and Brazil which have a good capacity of manufacturing cheap drug are given the opportunity these drugs. The production of the drugs can as well be sold to some other countries at a cheap rate. In general under the International South Africa has the right to manufacture and important cheap drugs given that it mezzo the requirements of Doha deviation. The pharmaceutical companies pulling out of the court battle between South Africa governments was precipitated by the fact that international has recognized the manufacture of cheap drugs by developing countries as companies to patent tight. Bibliography 1. K. Abbott, K. Wardman, Business law 7th edition, 2001, Oxford University press 2. W. Michael Riesman and Chris T. Antoniou, eds., The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict. New York 3. Stephen C. Neff, War and the Law of Nations: A General History. New York: Cambridge University Press, 2005 Read More